Count My Vote v. Cox , 2019 UT 60 ( 2019 )

This opinion is subject to revision before final
publication in the Pacific Reporter
2019 UT 60IN THE
SUPREME COURT OF THE STATE OF UTAH
COUNT MY VOTE, INC., MICHAEL O. LEAVITT, and RICHARD MCKEOWN,
Petitioners,
v.
SPENCER J. COX, CURTIS KOCH, BRYAN E. THOMPSON, and
KIM M. HAFEN,
Respondents.
No. 20180470
Filed October 10, 2019
On Petition for Extraordinary Relief
Attorneys:
Matthew M. Cannon, Robert P. Harrington, Salt Lake City, for
petitioners
Tyler R. Green, Stanford E. Purser, Salt Lake City, for respondent
Spencer J. Cox
Troy S. Rawlings, Neal C. Geddes, Michael D. Kendall, Farmington,
for respondent Curtis Koch
Brock R. Belnap, Eric W. Clarke, Natalie Nelson, Saint George, for
respondent Kim M. Hafen
Jeffrey R. Buhman, Paula A. Jones, Provo, for respondent
Bryan E. Thompson
J. Morgan Philpot, Alpine, for intervenors Constitution Party of Utah
and Keep My Voice
ASSOCIATE CHIEF JUSTICE LEE authored the opinion of the Court, in
which CHIEF JUSTICE DURRANT, JUSTICE HIMONAS and JUDGE ORME
joined except as to Part II.C.
JUSTICE HIMONAS filed a concurring opinion, in which JUDGE ORME
joined.
JUSTICE PETERSEN filed a dissenting opinion.
COUNT MY VOTE v. COX
Opinion of the Court
Having recused himself, JUSTICE PEARCE does not participate
herein; COURT OF APPEALS JUDGE GREGORY K. ORME sat.
ASSOCIATE CHIEF JUSTICE LEE, opinion of the Court except as to
Part II.C.:
¶1 This case comes to us on a petition for extraordinary writ
filed by Count My Vote, Inc., Michael O. Leavitt, and Richard
McKeown (collectively, CMV). The petitioners are advocates for a
statewide ballot initiative called the Direct Primary Initiative. The
proposed initiative would establish a direct primary election path for
placement on the general election ballot for persons seeking a
political party’s nomination for certain elected offices.
¶2 The petition is denied for reasons set forth below.1 Most of
this opinion represents the views of a majority of the court. The final
sub-part, II.C., presents the views only of the author of this opinion.
I. BACKGROUND
¶3 The Utah Constitution protects the right of “[t]he legal
voters of the State of Utah” to “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.” UTAH CONST. art. VI,
§ 1(2)(a). But that right is a qualified one. The constitution expressly
states that the right is to initiate legislation “in the numbers, under
the conditions, in the manner, and within the time provided by
statute.” Id. art. VI, § 1(2)(a)(i) (emphasis added).
¶4 The Utah Legislature has designated the numbers,
conditions, manner, and time for an initiative to qualify for the
ballot. By statute, a statewide initiative can qualify for placement on
the ballot only if its proponents satisfy the terms and conditions set
forth in Utah Code section 20A-7-201 et seq.2 The applicable terms
and conditions include the following:
_____________________________________________________________
1 We issued an order denying this petition on August 24, 2018,
noting the time-sensitive nature of the petition and indicating our
intent to issue an opinion explaining the basis of our decision. This is
the promised opinion.
2 Some of the relevant statutes were amended in 2019, but the
citations in the opinion are to the Code as it stood in 2018.
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x Initiative sponsors must hold seven public hearings in regions
designated by statute. UTAH CODE § 20A-7-204.1(1)(a).
x Persons gathering signatures must be over eighteen years of
age. Id. § 20A-7-205(2)(a).
x A person seeking to have an initiative placed on the ballot
must obtain “legal signatures equal to 10% of the cumulative
total of all votes cast by voters of this state for all candidates
for President of the United States at the last regular general
election at which a President of the United States was
elected.” Id. § 20A-7-201(2)(a).
x A person seeking to have an initiative placed on the ballot
must obtain “from each of at least 26 Utah State Senate
districts, legal signatures equal to 10% of the total of all votes
cast in that district for all candidates for President of the
United States at the last regular general election at which a
President of the United States was elected.” Id. (We refer to
this below as the Senate District Requirement.)
x The sponsors must verify those signatures “by completing the
verification printed on the last page of each initiative packet.”
Id. § 20A-7-205(2)(a).
x The packets must then be submitted to the county clerk for
certification by “the sooner of . . . 316 days after the day on
which the application is filed,” or “the April 15 immediately
before the next regular general election immediately after the
application is filed.” Id. § 20A-7-206(1)(a).
x The above packets must be submitted by the county clerk to
the lieutenant governor on or before May 15 of the year in
which the initiative is proposed to be included on the ballot.
Id. § 20A-7-206(3).
x Those who have signed an initiative petition may have their
signatures removed by “submitting to the county clerk a
statement requesting that the voter’s signature be removed”
and providing “the name of the voter;” “the resident address
at which the voter is registered to vote;” “the last four digits
of the voter’s Social Security number;” “the driver license or
identification card number;” and “the signature of the voter.”
Id. § 20A-7-205(3)(a)–(b).
x Voters seeking to have their signatures removed have until
one month after the petition in support of the initiative is filed
to do so. See id. § 20A-7-205(3)(d).
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¶5 CMV alleges that it had satisfied the above requirements as
of April 15, 2018. By that date, CMV asserts that it had held the
required public hearings and had gathered all of the requisite
signatures in the manner prescribed by the legislature. In all, CMV
claims that it gathered over 150,000 signatures in support of the
Direct Primary Initiative. And CMV alleges it gathered more than
enough signatures in twenty-six of the twenty-nine state senate
districts.
¶6 CMV also alleges that its attempt to qualify the Direct
Primary Initiative for the ballot was thwarted by the efforts of
another group known as Keep My Voice. Keep My Voice organized
an opposition to the Direct Primary Initiative. It sent members
door-to-door in a few select state senate districts. And it apparently
persuaded a number of voters to sign statements seeking to have
their signatures removed from the petition—enough voters that the
Direct Primary Initiative fell below the statutory threshold in three of
the twenty-six districts in which CMV had gathered votes. Keep My
Voice gathered the voter statements and submitted them en masse to
the lieutenant governor. And the lieutenant governor ultimately
found that the petitioners had failed to satisfy the requirements of
Utah Code section 20A-7-201(2)(a) and thus refused to certify the
initiative for the November 2018 ballot.
¶7 CMV challenged that decision in a petition for extraordinary
writ in this court. The petition challenges the lieutenant governor’s
decision on both statutory and constitutional grounds. CMV
contends (1) that Utah Code section 20A-7-205(3)(a) should be
construed to require an individual signer to personally submit a
request for removal of a signature in support of an initiative petition,
and thus to foreclose the submission of such requests by a group like
Keep My Voice; and (2) that the terms and conditions of Utah Code
sections 20A-7-201 et seq. are unconstitutional under (a) the Equal
Protection Clause of the United States Constitution, (b) the Uniform
Operation of Laws Clause of the Utah Constitution, and (c) article
VI, section 1 of the Utah Constitution.
¶8 The decision whether “to grant or deny a petition for
extraordinary writ is discretionary.” Krejci v. City of Saratoga Springs,
2013 UT 74, ¶ 10, 322 P.3d 662. In exercising our discretion, we have
been sensitive to the problems associated with the issuance of a
decision in circumstances involving “disputed material allegations of
fact” in the absence of a “record . . . to aid this court in resolving”
such disputes. Carpenter v. Riverton City, 2004 UT 68, ¶ 4, 103 P.3d
127. “Because this court does not conduct evidentiary hearings
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(except in those rare circumstances in which reference to a special
master is deemed appropriate),” we have emphasized that we are
“not in a position to arrive at a legal ruling that is dependent on the
resolution of disputed facts.” Id.¶9 “[T]he determination of whether this court may adjudicate a
petition is not unlike a district court’s decision to grant summary
judgment.” Id. ¶ 5. “Where a petition is presented on uncontroverted
material facts (e.g., by stipulation or unopposed affidavits), and it is
otherwise appropriate for this court to exercise its jurisdiction to
issue extraordinary relief, it may issue a judgment on the merits.
Conversely, where a petitioner is unable to meet the requirement of
an undisputed basis for issuing the relief requested, the petition
generally should not be brought in this court in the first instance.” Id.
II. ANALYSIS
¶10 Several of CMV’s claims raise pure questions of law. Those
claims are subject to resolution on the briefing that is before us. But
that is not true of all of CMV’s claims. The challenge under article VI
of the Utah Constitution is more fact-intensive. For that reason we
are unable to resolve it conclusively on the briefing that is before us.
¶11 We deny the petition for extraordinary writ for reasons set
forth below. We reject CMV’s statutory claim on its merits—
concluding that there is no bar in Utah Code section 20A-7-205(3)(a)
to collective submission of signature removal requests. We also reject
CMV’s equal protection and uniform operation of laws claims on
their merits. We hold that the challenged provisions of the Utah
Code trigger only rational basis scrutiny under the Equal Protection
Clause and uphold those provisions as rational. We also conclude
that they effect no disparate treatment of similarly situated persons
and accordingly hold that they raise no uniform operation of laws
concerns.
¶12 We also deny the petition to the extent it is rooted in a
claim under article VI of the Utah Constitution. But we decline to
render a conclusive ruling on the merits of the questions presented
on this claim because it implicates elements of the governing legal
standard that are not fully developed in our jurisprudence and it
turns on disputed questions of fact. For these reasons we decline to
exercise our discretion to resolve this claim on a petition for
extraordinary writ. We hold that CMV has failed to carry its burden
of establishing a violation of article VI “with undisputed allegations
of fact.” See Carpenter v. Riverton City, 2004 UT 68, ¶ 10, 103 P.3d 127.
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And we deny the petition on that basis without rendering a
conclusive decision on the merits of this claim.
¶13 The grounds for the court’s disposition of CMV’s statutory
claim are set forth in Part II.A. below. Part II.B. presents the basis for
the court’s disposition of CMV’s constitutional claims. Part II.C. then
concludes with a discussion of additional issues; this portion of the
opinion presents the views only of the author of this majority
opinion.
A. Statutory Claim
¶14 CMV’s first claim arises under Utah Code
section 20A-7-205(3)(a), the so-called “Removal Provision.” CMV
asks us to interpret this provision to require personal submission of
the signature removal form by the voter. Such an interpretation
would foreclose the need for us to address CMV’s constitutional
claims because the removal forms at issue were not submitted
personally by voters but through Keep My Voice.
¶15 CMV asserts that its reading of the Removal Provision is
required by the canon of constitutional avoidance, the plain text of
the statute, the legislative history, and the overall purpose of the
Election Code. CMV also contends that such a reading is supported
by the official signature removal form issued by the lieutenant
governor’s office. We find none of these points persuasive.
¶16 We begin with the text of the statute. The governing text of
the Removal Provision provides that a “voter who has signed an
initiative petition may have the voter’s signature removed from the
petition by submitting to the county clerk a statement requesting
that the voter’s signature be removed.” UTAH CODE
§ 20A-7-205(3)(a). CMV asks us to read a personal submission
requirement into the statutory reference to a “voter.” We decline to
do so under the expressio unius canon—the notion that the expression
of one set of terms or conditions is an implied exclusion of others. See
Bagley v. Bagley, 2016 UT 48, ¶ 10, 387 P.3d 1000. And we hold that
the statutory text, as informed by this canon, forecloses CMV’s other
arguments.
¶17 The Removal Provision prescribes an express restriction on
the submission of removal forms. It states that the “voter may not
submit a statement by email or other electronic means.” UTAH CODE
§ 20A-7-205(3)(c). The implication is that voters are subject to no
other restrictions. They may utilize other means of submission—
including by utilizing the assistance of a third party. But personal
submission (without the assistance of a third party) is not required.
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¶18 The statutory prohibition on email strongly implies
approval of the regular mail. And if regular mail is allowed, then
voters can surely rely on the assistance of a third party. A letter
carrier is a third party, and we see no non-arbitrary basis for
distinguishing the services of a letter carrier from that of an
organization like Keep My Voice.3 We accordingly hold that CMV’s
position fails as a matter of plain language.
¶19 That conclusion forecloses CMV’s other arguments. Where
the statutory language is clear we have no basis for considering the
canon of constitutional avoidance, see Utah Dep’t of Transp. v. Carlson,
2014 UT 24, ¶ 24, 332 P.3d 900 (canon does not apply unless statute is
“genuinely susceptible to two constructions” (citation omitted)), or
an assertion of a general statutory “purpose” that purportedly
overrides the text, see Craig v. Provo City, 2016 UT 40, ¶ 33, 389 P.3d
423 (“text must control over a general sense of legislative purpose”).
¶20 The conclusion that CMV’s view is incompatible with the
plain language of the statute also obviates the need to resort to the
legislative history. See In re Adoption of Baby E.Z., 2011 UT 38, ¶ 15,
266 P.3d 702. This is especially so “where it is employed to credit
personal preferences of individual legislators over the duly enacted
statutory text.” Id. ¶ 112 (Lee, J., concurring in part and concurring in
the judgment). And that is exactly what CMV seeks to do here. CMV
offers single lines from the statements of Senators Liljenquist and
Stephenson and Representative Wimmer. These statements are at
best ambiguous. They certainly do not provide enough justification
to override the clear import of the statutory text.
¶21 CMV also seeks to find support for its position in the
language of the signature removal form issued by the lieutenant
governor’s office. That form states that a signatory must submit the
application to the “county clerk via mail or deliver it in person.”
2018 Official Removal Form,
_____________________________________________________________
3 There may well be a factual difference between Keep My Voice,
an organization that has a vested interest in the outcome of the
initiative process, and a neutral letter carrier such as the United
States Postal Service. And nothing would prevent the legislature
from drawing such a line if it chose to do so. But we see no basis in
the text of the current statute to draw a distinction based on the
interest or stake (or lack thereof) of a third party. And we decline to
shoehorn such a distinction into a statute that leaves no room for it.
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https://elections.utah.gov/Media/Default/2018%20Election/Forms
/2018%20Request%20to%20Remove%20Petition%20Signature.pdf.
This may seem to support CMV’s notion of a requirement of
personal delivery. But we reject that view on two grounds. First, and
foremost, is the fact that the lieutenant governor’s form is not law.
The lieutenant governor is charged with implementing the law in
this field. But his interpretation of the law is not a matter meriting
deference under Utah law. We have repudiated the principle of
Chevron deference4 as a matter of Utah law. See Hughes Gen.
Contractors, Inc. v. Utah Labor Comm’n, 2014 UT 3, ¶ 25, 322 P.3d 712.
And for that reason the lieutenant governor’s view of the law,
reflected in the cited form, is unhelpful to CMV’s position.
¶22 There is also a second problem with CMV’s reliance on this
form. The form, in context, does not require personal submission.
The next sentence after the one CMV quotes from the form states
that “[t]his form cannot be sent via electronic means (such as email).”
2018 Official Removal Form, supra ¶ 21. That indicates that the
“deliver it in person” reference simply illustrates an acceptable
method of conveying the form to the office in hard copy; it does not
foreclose the use of third-party assistance in submitting the removal
form. See Olsen v. Eagle Mountain City, 2011 UT 10, ¶ 12, 248 P.3d 465(“Our task . . . is to determine the meaning of the text given the
relevant context . . . .”).
¶23 We reject CMV’s statutory claim on these grounds. We
credit the plain text of the statute and hold that the Removal
Provision does not require personal submission by the voter.
B. Constitutional Claims
¶24 CMV also asserts a range of claims under the Utah and
United States Constitutions. CMV asserts that the terms and
conditions of the statutory scheme violate the Uniform Operation of
Laws Clause and the Initiative Provision of the Utah Constitution.
And it further contends that the challenged requirements run afoul
of the Equal Protection Clause of the United States Constitution. For
reasons explained in detail below, we reject each of these arguments.
_____________________________________________________________
4 Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837(1984) (federal agency interpretation of ambiguous language of
federal statute is entitled to deference from the courts).
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1. Equal Protection
¶25 CMV asserts that the Removal Provision, UTAH CODE
§ 20A-7-205(3)(a), and the Senate District Requirement, id.
§ 20A-7-201(2)(a), acting in tandem, violate the Equal Protection
Clause of the Fourteenth Amendment. The equal protection claim
arises under the United States Supreme Court’s one-person, one-vote
precedents, such as Moore v. Ogilvie, 394 U.S. 814 (1969), and our
analysis of these cases in Gallivan v. Walker, 2002 UT 89, 54 P.3d 1069.
But the present case is distinguishable from Gallivan in important
respects.
¶26 The key issue in Gallivan was the power disparity between
urban and rural voters created by the relevant statutory provisions.
The Gallivan plurality stated that the “disparity in power between
the registered voters in rural counties and the registered voters in
urban counties under the multi-county signature requirement is
constitutionally impermissible, and such invidious discrimination
will not be constitutionally tolerated.” 2002 UT 89, ¶ 80. Such a
concern is wholly absent here. The current signature provision
requires sponsors to gather signatures in twenty-six of Utah’s
twenty-nine senate districts. These districts, as CMV concedes, have
roughly equal populations. And this equal distribution of population
means that rural and urban voters are treated the same and that
neither group wields disproportionate power. Thus, even assuming
that application of the one-person, one-vote principle is appropriate
here, there is no violation thereof. See Libertarian Party v. Bond, 764
F.2d 538, 544 (8th Cir. 1985) (signature gathering provision presented
no constitutional concerns where “districts [were] virtually equal in
population”).
¶27 We reject CMV’s equal protection claim on these grounds.
And we conclude that the Removal Provision and the Senate District
Requirement withstand such scrutiny.
2. Uniform Operation of Laws
¶28 Article I, section 24 of the Utah Constitution provides that
“[a]ll laws of a general nature shall have uniform operation.”
Historically, this Uniform Operation of Laws Clause was viewed as a
“requirement of consistency in application of the law to those falling
within the classifications adopted by the legislature, or in other
words a prohibition on special privileges or exemptions therefrom.”
State v. Canton, 2013 UT 44, ¶ 34, 308 P.3d 517. At the time of the
framing of the Utah Constitution, in other words, “uniform
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operation provisions were understood to be aimed not at legislative
classification but at practical operation.” Id.¶29 “The modern formulation of uniform operation is different.
It treats the requirement of uniform operation as a state-law
counterpart to the federal Equal Protection Clause.” Id. ¶ 35. Under
this conception, we have applied a three-step inquiry in determining
whether the classifications in a statute run afoul of the Uniform
Operation of Laws Clause. Id. We have asked “(1) whether the
statute creates any classifications; (2) whether the classifications
impose any disparate treatment on persons similarly situated; and
(3) if there is disparate treatment, whether the legislature had any
reasonable objective that warrants the disparity.” State v. Robinson,
2011 UT 30, ¶ 17, 254 P.3d 183 (internal quotations marks and
citations omitted); see also DIRECTV v. Utah State Tax Comm’n, 2015
UT 93, ¶¶ 49–50, 364 P.3d 1036.5
¶30 The third step of this framework is triggered only if there is
both a legislative classification and disparate treatment of similarly
situated persons. In the absence of either a classification or disparate
_____________________________________________________________
5 Our past cases have not been entirely clear in our formulation of
the governing test. See, e.g., State v. Mohi, 901 P.2d 991, 997 (Utah
1995) (asserting that the test requires two-steps, but then listing
three); State v. Canton, 2013 UT 44, ¶ 36 n.9, 308 P.3d 517 (noting that
our cases “generally incorporate principles from the federal equal
protection regime” while “reserving the right to depart from those
standards in an appropriate case,” but concluding that “our
precedent to date has offered little basis or explanation for the extent
of any difference between the federal equal protection guarantee and
the state requirement of uniform operation,” and holding that the
parties in that case had not identified any basis for any difference).
The Robinson framework, moreover, implicates some difficult
questions that are not clearly answered in our case law—as to
whether, for example, the “similarly situated” inquiry is properly
seen as a threshold question, or better thought of as an aspect of
rational basis scrutiny. Yet this is not an appropriate case in which to
resolve these questions. See infra ¶ 52 (highlighting some
unanswered questions under article VI but identifying barriers to
resolving them in a case presented to us in the compressed
timeframe of a petition for extraordinary writ). As Robinson is a
prevailing statement of our law, we proceed under its approach.
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treatment of similarly situated persons, the Uniform Operation of
Laws Clause is not implicated—there is no further scrutiny.
¶31 At the third step of our analysis we have asked whether a
statutory classification discriminates “on the basis of a ‘fundamental
right’”—a conclusion that triggers heightened scrutiny. See
DIRECTV, 2015 UT 93, ¶ 50; Lee v. Gaufin, 867 P.2d 572, 582–83 (Utah
1993). But such scrutiny is implicated only at the third step—it is
triggered only if there is a finding of disparate treatment of similarly
situated persons. See Robinson, 2011 UT 30, ¶ 17. We proceed to the
third step, in other words, only if “the statute both creates
classifications and imposes disparate treatment among persons
similarly situated within those classifications.” Id.¶32 Petitioners’ claim falters at the first two steps. We have
previously suggested that the governing provisions of the Utah Code
“do not create any classifications” among voters who are similarly
situated. Utah Safe to Learn-Safe to Worship Coal., Inc. v. State, 2004 UT
32, ¶ 33, 94 P.3d 217; see also Cook v. Bell, 2014 UT 46, ¶ 31, 344 P.3d
634 (concluding that “neither the senatorial district requirement, nor
the one-year requirement, created any classifications” among
similarly situated voters, “but appl[y] equally to all Utah citizens”
(citation and internal quotation marks omitted)). And we reinforce
that conclusion here—rejecting petitioners’ allegation of disparate
treatment of similarly situated persons. On that basis we conclude
that petitioners have failed to carry their burden of establishing a
violation of the Uniform Operation of Laws Clause.
¶33 Petitioners challenge the Utah Code’s differential treatment
of initiative sponsors and initiative opponents. They note that the
Code imposes certain restrictions and requirements on the former
that do not extend to the latter. As petitioners indicate, initiative
sponsors must hold public hearings and file an application and
various reports. And sponsors face restrictions on who may gather
signatures and circulate the petition. UTAH CODE §§ 20A-7-202,
20A-7-205.5, 20A-11-802(1). None of these restrictions apply to
initiative opponents. So there is disparate treatment in some sense
under the Robinson test.
¶34 But disparate treatment alone is insufficient to trigger
uniform operation scrutiny under Robinson. The constitutional
prohibition is against disparate treatment of persons who are
“similarly situated.” Robinson, 2011 UT 30, ¶ 17. And initiative
sponsors and opponents are not similarly situated. Initiative
sponsors are seeking a significant change to the status quo—the
addition of a piece of proposed legislation to the ballot. By proposing
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an initiative, moreover, sponsors are introducing a new topic for
evaluation by voters. Opponents are in a different position
altogether. They do not wish to alter Utah law, but to maintain the
status quo. And they are simply responding to a topic already
introduced into the public sphere by the sponsors.
¶35 These distinctions provide ample grounds for the
conclusion that sponsors and opponents are not similarly situated.
The legislature could properly conclude that those who seek to
maintain the status quo—and to respond to a subject introduced by
proponents—need not be subject to the restrictions placed on those
who open up the subject for consideration in the first place. These
are rational grounds for distinguishing sponsors from opponents.
And the existence of a legitimate ground that “can be reasonably
imputed to the legislative body” is enough to justify the legislative
distinction. See Safe to Learn, 2004 UT 32, ¶ 36.
¶36 In a sense the petitioners’ core complaint is that the
legislature has not swept more broadly in its attempt to regulate the
initiative process. The concern is with the legislature’s failure to
regulate more extensively than it did—its decision to impose
qualification requirements only on initiative sponsors, without
imposing parallel requirements on opponents. But that is “not a
viable, standalone basis for a uniform operation challenge.” Canton,
2013 UT 44, ¶ 39. Because sponsors and opponents are not similarly
situated, the legislature is not required to treat them identically. And
the fact that the legislature could have extended its regulations to
initiative opponents is no basis for striking down this legislation on
uniform operation grounds.
¶37 Petitioners also seek to direct their uniform operation
challenge at Utah Code sections 20A-7-205(3)(a)–(b) and
20A-7-201(2)(a). The first-cited provision allows voters who have
once signed a petition to remove their support for an initiative by
filing a statement with a signature and identifying information. The
second provision requires sufficient signatures (10 percent of the
votes for President in the last presidential election) not just statewide
but in twenty-six of twenty-nine state senate districts. And
petitioners assert that the effect of these provisions is to “dilute” the
power of those who sign a petition and choose not to remove their
signatures and “heighten” the power of those who do.
¶38 This claim, at bottom, seems rooted not in an allegation of
disparate treatment but in principles established in article VI of the
Utah Constitution. The allegations about dilution of support for an
initiative and heightened effects of opponents’ rights sounds in
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principles of “undue burden” on the initiative right. And that is a
concern addressed by the test we have formulated under article VI,
which we evaluate in Part II.C. below.
¶39 The treatment of supporters and opponents of an initiative,
in any event, are again explained by the fact that these two groups
are not similarly situated. Voters who wish to remove their
signatures are in a qualitatively different position from both voters
who have signed a petition but still maintain their support, and
voters who have not yet signed (and may never do so). Voters who
wish to remove their signatures are seeking to change their minds
about a political issue; yet the fact that they previously signed means
that they are at least tentatively committed to their previous
position. Voters who have not yet signed, on the other hand, are free
to change their minds at any time. And voters who have signed and
wish to maintain their support face no problems at all.
¶40 Thus, those who wish to remove their signatures must clear
a higher bar in order to effectuate their change of opinion. But those
voters are not similarly situated with other groups of voters. And the
legislature thus has a rational basis for prescribing a process by
which voters can avail themselves of that right.6
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6 Petitioners assert that the legislature’s elimination of the
notarization requirement makes it much easier for voters to
withdraw their support for an initiative—so easy, in fact, that the
right to an initiative is unconstitutionally “diluted.” Our precedent,
however, has long recognized an individual right of a voter to
withdraw support for an initiative. See Halgren v. Welling, 63 P.2d
550, 557 (Utah 1936). And the precise means of balancing the proper
protection of that right against the rights of those voters who wish to
support an initiative is not ours to make. All that is required is that
the legislative line-drawing is rational. And the lines drawn here
surely are. See UTAH CODE § 20A-7-205(3)(a)–(d) (providing
safeguards against fraud by requiring a voter seeking to withdraw
support to provide name, address, last four digits of the social
security number, driver’s license number, and signature). For that
reason we are in no position to second-guess the legislature’s
judgments in this field. See Ryan v. Gold Cross Servs., Inc., 903 P.2d
423, 427 (Utah 1995) (exact proof of legislative purposes is not
required, as long as reasonably conceivable facts support the
provision).
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¶41 We reject petitioners’ uniform operation claim on this basis.
Because petitioners have identified no disparate treatment of
similarly situated persons, we hold there is no uniform operation
violation.
3. Article VI
¶42 Article VI, section 1 of the Utah Constitution provides in
relevant part 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[] 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.
UTAH CONST. art. VI, § 1(2)(a). Our precedents have highlighted two
central features of this provision. On one hand, we have held that
article VI, section 1 establishes a right of “legal voters” to “initiate”
desired legislation and “cause it to be submitted to the people” for a
vote. Id.; see also Gallivan, 2002 UT 89, ¶ 25 (concluding that the
initiative right is a “constitutionally guaranteed right”); Safe to Learn,
2004 UT 32, ¶ 27 (reinforcing that conclusion). With this in mind, we
have concluded that the legislature “is required to ‘enact legislation
to enable the people to exercise their reserved power and right to
directly legislate through initiative.’” Safe to Learn, 2004 UT 32, ¶ 28
(quoting Gallivan, 2002 UT 89, ¶ 28). And we have subjected
legislative restrictions on the right to initiate legislation to a degree
of constitutional scrutiny. See, e.g., Cook, 2014 UT 46.
¶43 On the other hand, we have also noted that the rights of
voters in this field are “not unfettered, but come[] with a built-in
limitation.” Safe to Learn, 2004 UT 32, ¶ 28. Thus, we have explained
that article VI, section 1, “while granting the right” to initiate
legislation, “simultaneously circumscribes that right by granting the
legislature leave to regulate, by statute, the manner in which the
right is exercised.” Id. And we have held that the qualified or
“self-limiting” nature of the initiative rights of the people means that
legislative restrictions in this field are “not . . . subjected to
heightened scrutiny,” but instead are subject to review under a
standard that recognizes “‘the conclusion that government must
play an active role in structuring elections.’” Id. ¶ 34 (quoting Burdick
v. Takushi, 504 U.S. 428, 433 (1992)).
¶44 With this in mind, we have “reiterate[d] that ‘[i]t is
axiomatic that laws enacted by the legislature are presumed to be
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constitutional and that the legislature is accorded wide latitude in
complying with constitutional directives such as the one contained
in article VI, section 1.” Id. ¶ 35 (second alteration in original)
(quoting Owens v. Hunt, 882 P.2d 660, 661 (Utah 1994)). And we have
articulated an “undue burden” test aimed at respecting both the
rights of voters to initiate legislation and the prerogatives of the
legislature to regulate the terms and conditions of the exercise of that
right. That test states that a court should assess whether a legislative
“enactment is reasonable, whether it has a legitimate legislative
purpose, and whether the enactment reasonably tends to further that
legislative purpose.” Id. And in “evaluating the reasonableness of the
challenged enactment and its relation to the legislative purpose,” we
have said that “courts should weigh the extent to which the right of
initiative is burdened against the importance of the legislative
purpose.” Id.¶45 Our precedents thus call for the court to weigh or balance
the two components of article VI, section 1—the voters’ right to
initiate legislation, and the “built-in limitation” on that right (in the
legislature’s expressly delegated power to prescribe terms and
conditions on its exercise). In assessing the strength of the latter
(legislative purpose), we have emphasized that “‘we do not require
exact proof of the legislative purposes; it is enough if a legitimate
purpose can be reasonably imputed to the legislative body.’” Id. ¶ 36
(quoting Ryan, 903 P.2d at 427). We have also said that the standard
“‘does not purport to require the [l]egislature to find the least
restrictive manner of furthering its purpose,’” but also “does not
allow ‘such wide latitude as to virtually abandon judicial review.’”
Id. ¶ 37 (alteration in original) (quoting Condemarin v. Univ. Hosp.,
775 P.2d 348, 373 (Utah 1989) (Stewart, J., concurring in part)). Thus,
we have said that this inquiry “bear[s] a resemblance to our
traditional minimal scrutiny review” but requires a somewhat “more
exacting analysis.” Id.¶46 Our cases have not identified all of the senses in which
article VI scrutiny is “more exacting” than that called for under
rational basis review. The test as formulated in our case law does
state that one additional element of the article VI test concerns an
inquiry into the degree of any alleged burden on the initiative
right—the “extent to which the right of initiative is burdened.” Id.
¶ 35. But we have not yet had occasion to specify the manner and
means by which a party may carry its burden of establishing the
nature and extent of any burden on the initiative right. Nor have we
had the opportunity to explain exactly how the degree of any such
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Opinion of the Court
burden is to be balanced or weighed “against the importance of the
legislative purpose” of the statutory provisions in question. Id.
¶47 This is a matter of great significance under the Utah
Constitution. Different members of this court, moreover, may have
differing views on how best to frame this element of the test.7 And
the parties’ briefing in this matter has not proposed a basis for
clarifying or illuminating the as-yet unspecified terms of our test.8
_____________________________________________________________
7 See Cook, 2014 UT 46, ¶ 22 (noting that the plaintiff in that case
had presented “no evidence that the initiative proponents’ failure . . .
signifies that no unsponsored and volunteer-driven petition would
be able to succeed”); id. ¶ 39 (Lee, J., concurring in the judgment)
(suggesting that the legislature’s right to define the terms and
conditions of initiatives should “yield to the right of the people to
initiate desired legislation in circumstances where the legislature’s
regulation forecloses any meaningful channels for the actual
vindication of the people’s reserved power”); id. ¶ 42 (suggesting
that we should override a legislative prescription of the terms and
conditions of initiatives “only in the rare circumstance in which the
legislature’s attempts to regulate process effectively abrogate the
reserved right of the people to initiate desired legislation”); see also
supra ¶ 37; infra ¶¶ 110–31.
8 The question also arose at oral argument. There the court asked
all counsel for further input on the nature and extent of the proof
required to establish a “burden” on the initiative right, and on how
to decide when that burden becomes “undue” (in outweighing the
strength of the legislative purpose). Oral Argument, Count My Vote
v. Cox (Aug. 14, 2018)
(https://www.youtube.com/watch?v=wlfRGoWHLfQ). And
counsel offered little, if anything, more than what was provided in
the briefs—a restatement, for the most part, of what appears in our
case law in this area, and an assurance that the court will somehow
“know it when we see it.” Id.
The dissent’s approach is similarly opaque. Justice Petersen says
that it is “clear” that the burden caused by the election code is
“undue.” Infra ¶ 127. And she advances the sweeping conclusion
that the government’s interests are insufficiently “important” to
outweigh that burden. Infra ¶ 127. Yet nowhere does the dissent
describe the precise standards that it would apply in defining what
qualifies as an “undue” burden or in balancing that burden against
the competing legislative purpose. Without more, the dissent’s
(continued . . .)
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¶48 This is perhaps understandable given the compressed
timeframe in which this case comes before us on this petition for
extraordinary writ. In light of the inherent time pressures involved
in a case that must be decided before the upcoming November
election, we can understand the difficulty of providing careful
briefing on all of the ins-and-outs of the “undue burden” test as
applied to a case like this one. We recognize, moreover, that it is the
duty and prerogative of this court to say what the law is. And in a
case before us on appeal, we typically would take whatever steps
necessary to clarify and specify the standard of proof that applies to
a claim presented for our decision.
¶49 This case is not before us on appeal, however. It is
presented on a petition for extraordinary writ—in which we have
discretion to decide not to decide the issues presented on their merits.
Carpenter v. Riverton City, 2004 UT 68, ¶ 5, 103 P.3d 127 (emphasis
added) (noting that we “may issue a judgment on the merits”). And
the imprecision in the operative standard is not the only problem.
There is another key shortcoming in the case as presented to us in
this procedural posture: Because the case was filed here in the first
instance, there is no evidentiary record; and the parties’ submissions
reveal an underlying dispute on the nature and extent of any burden
on the right to pursue an initiative.
¶50 Petitioners’ “proof” of the burden on their right to propose
an initiative is anecdotal. They have not submitted any expert
testimony or statistical evidence of the impact of the challenged
statutory provisions on their ability to succeed in getting an initiative
on the ballot. Instead they note that their Direct Primary Initiative
failed to qualify for the ballot despite its alleged popularity among
voters. And they assert that two other groups initiated attempts to
get statewide initiatives on the ballot but failed. On this basis,
petitioners invite us to make the “common sense” conclusion that
the legislature’s restrictions on ballot initiatives have gone too far—
and impose a burden on ballot initiatives that is “undue” and should
be deemed to outweigh the strength of any legitimate legislative
purpose in regulating the terms and conditions of the initiative
process.
approach only highlights the need for us to identify a clear standard
before we resolve a case of this significance. And for reasons
explained herein, we conclude that this is not the right case in which
to do so.
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Opinion of the Court
¶51 The lieutenant governor proffers a different view. In the
lieutenant governor’s view the “undue burden” standard cannot be
met upon a mere showing that petitioners’ “initiative failed to reach
the ballot.” Lieutenant Governor’s Memorandum in Opposition to
Petition for Extraordinary Writ at 21. The lieutenant governor asserts
that “three other statewide initiatives qualified for the ballot this
year—under the same legal requirements” challenged by petitioners.
Id. at 22, 22 n.3 (alleging that “[o]nly four initiative proponents
sought approval for their initiatives to be on the ballot” and that
“[o]f those four,” the Direct Primary Initiative “is the only one that
failed to qualify”). And he insists that “a threshold that 75 percent of
initiative sponsors cleared this year cannot fairly be called unduly
burdensome.” Id. at 22. Citing Cook v. Bell, the lieutenant governor
asks us to reject petitioners’ article VI argument on the ground that
petitioners failed to present “practical,” “real-world evidence” that
the statutory provisions in question actually burdened petitioners’
attempts to get their Direct Primary Initiative on the ballot. Id. at 23
(citing Cook to the extent the majority in that case noted “that there
was ‘no evidence that the initiative proponents’ failure . . . signifies
that no unsponsored and volunteer-driven petition would be able to
succeed”).
¶52 These arguments and assertions leave us with a range of
unanswered questions about the material facts of this case. Without
more briefing, and in the absence of a record and decision by a lower
court, we are in no position to resolve the dispute between
petitioners and the lieutenant governor. We cannot determine, for
example, whether or to what extent the challenged statutory
provisions resulted in an undue burden on the right to initiative.9
_____________________________________________________________
9 The dissent’s contrary conclusion is rooted in an
oversimplification of the question presented. We do not doubt that
CMV obtained sufficient signatures prior to the removal period but
dropped below the statutory minimum thereafter. See infra ¶¶ 118–
20. In a but-for sense, it may thus be said that it was the removal
period that “led to” the failure of the Direct Primary Initiative. Infra
¶ 118. But that is not the question under our case law. There is no
constitutional bar to statutory provisions that happen to stand in the
way of an individual initiative in a particular election year. The
constitutional question is whether the statutory provision in question
caused an “undue burden” on the “right of initiative.” Safe to Learn,
2004 UT 32, ¶ 35. Again, our cases have not stated the standard for
(continued . . .)
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Nor can we assess whether or to what extent the differences between
the parties in their view of the alleged facts may be material to the
question presented. Yet there is no time for us to seek supplemental
briefing in a case that must be resolved so quickly—in advance of the
November election. And we are in no position, on this record and
with the briefing now before us, to decide whether any alleged
impact on the voters’ right to an initiative is outweighed by the
importance of the legislature’s legitimate purposes in enacting the
provisions in question.
¶53 For these reasons we conclude that petitioners have failed
to carry their burden of identifying “an undisputed basis for
[granting] the relief requested,” as required in our case law. See
Carpenter, 2004 UT 68, ¶ 5. And we deny the petition on this basis
without reaching the merits of petitioners’ claim under article VI.
the undue burden inquiry with any degree of precision. But we have
made clear that it is not enough for a party to assert that its initiative
efforts in a given election year were interrupted by a challenged
statutory provision. See Cook v. Bell, 2014 UT 46, ¶ 10, 344 P.3d 634(alterations in original) (citation omitted) (“[t]his does not mean . . .
that the legislature may never pass regulations that have the effect of
making it more difficult to enact legislation by initiative”); Safe to
Learn, 2004 UT 32, ¶ 49 (“Although we recognize the potential
difficulty this provision may cause to initiative sponsors, such a
regulation is reasonable in light of the importance of protecting the
right of a voter to withdraw his signature . . . .”). More is required,
and the more involves a broader inquiry into the global effect of a
challenged statutory provision on access to the ballot of initiatives
more generally. See Cook, 2014 UT 46, ¶ 12 (speaking in terms of
“unduly burden[ing] the right of Utah’s citizens to initiate legislation”
(emphasis added)). Justice Petersen has not addressed this question,
and again we have neither the record nor the briefing necessary to
resolve it.
On this record we cannot determine whether the Direct Primary
Initiative’s failure is an indication of an undue burden on the
initiative right more generally or a lack of sufficient support for this
particular initiative. Again, other initiatives have succeeded under
this statutory scheme. Infra ¶ 126 (noting the success of the cannabis
initiative). And it may be that the facts cited by the dissent are only
an indication that the Direct Primary Initiative was not as popular as
those that succeeded in getting on the ballot—and not proof of an
undue burden on the “right of initiative.”
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Opinion of the Court
¶54 In so doing we do not foreclose the possibility that these
petitioners or other claimants may be able to carry their burden in a
future case. Our disposition of this matter is based on the procedural
posture of the case that is before us—the fact that this comes to us in
a compressed timeframe on a petition for extraordinary writ.10 And
we note that our decision could conceivably be different if a case like
this came to us on a more completely developed record—in a case
filed in district court on a declaratory judgment claim, for example.
¶55 Some of the questions presented here are arguably resolved
by our precedent. But petitioners have sought to distinguish or
overcome that precedent—by asserting, for example, that the net
effect of the range of statutory provisions they challenge here is
sufficiently greater than that at issue in our prior cases, such as Safe
to Learn, to allow them to satisfy the undue burden test. We do not
foreclose that possibility. But we emphasize that this is not an
appropriate posture in which to resolve this question.
C. Unresolved Issues
¶56 In the above sections we set forth appropriate grounds for
the denial of the petition filed with the court in this case. Yet we also
identified some important issues that we do not resolve conclusively.
Those issues concern the governing standard of scrutiny under
article VI, section 1 of the Utah Constitution, and the applicability of
the heightened scrutiny standard set forth in the one-person, one-
vote cases under the Equal Protection Clause of the United States
Constitution. These are important questions on which our law is in a
state of disarray. We should resolve them in a future case in which
the issues are more squarely presented.
1. The Undue Burden Test Under Article VI, Section 1
¶57 A key question presented here concerns the governing
standard of scrutiny under article VI, section 1 of the Utah
Constitution. We sidestep this question above, citing a series of
unresolved factual questions and shortcomings of the parties’
briefing. See supra ¶ 52. That is an appropriate disposition given the
_____________________________________________________________
10 In that sense this case is different from the other cases in which
we have applied the undue burden test under article VI. Both Safe to
Learn and Cook came to us in the ordinary course—as appeals from
cases heard first in the district court. See Cook, 2014 UT 46, ¶ 6; Safe to
Learn, 2004 UT 32, ¶ 8.
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discretionary nature of a petition for extraordinary writ. But in time
we will need to address this important question.
¶58 Our case law is in a state of disarray on this issue. We have
articulated an “undue burden” test with a range of factors to be
balanced by the court. See Utah Safe to Learn-Safe To Worship Coal., Inc.
v. State, 2004 UT 32 ¶ 35, 94 P.3d 217. But we have not yet settled on
a consensus understanding of how that test is supposed to function,
or of whether it is a workable or correct one. That is highlighted by
the various opinions of the members of the court on this issue here.
See infra ¶¶ 79–138. In time we will need to confront this problem.
¶59 When we reach this question we will need to clarify, at a
minimum, how the undue burden test is supposed to work in
practice. And when we do, we should consider whether the test as
stated is a workable one, and whether it can be reconciled with the
language and structure of the Utah Constitution. See Cook v. Bell,
2014 UT 46, ¶ 38, 344 P.3d 634 (Lee, J., concurring in the judgment).
¶60 The right to an initiative is a carefully circumscribed one.
There is no freestanding, unfettered right to initiate legislation. The
right established in the Utah Constitution is expressly defined as a
right to initiate legislation “in the numbers, under the conditions, in
the manner, and within the time provided by statute.” UTAH CONST.
art. VI, § 1. The structure of this provision is significant. It identifies
the branch of our government that is tasked with the balancing and
policymaking inherent in deciding on the terms and conditions of
the initiative power. That branch is the legislature; not the judiciary.
¶61 The “undue burden” standard articulated in our cases calls
on us to “(a) assess the extent of any ‘undue burden’ imposed by the
legislature’s regulation of the initiative process, (b) evaluate whether
any legislative regulation is ‘reasonable’ or ‘reasonably’ advances a
legislative purpose, [and] (c) ‘weigh the extent to which the right of
initiative is burdened against the importance of the legislative
purpose.’” Cook, 2014 UT 46, ¶ 41 (Lee, J., concurring in the
judgment). It seems difficult, at best, for our courts to seize this
balancing power without treading on the express authority of the
legislature to determine the “numbers,” “conditions,” “manner,” and
“time” for the exercise of the initiative power.
¶62 The briefing in this case has highlighted problems with the
workability of the “undue burden” balancing test. CMV has urged
us to second-guess the balance struck by the legislature in regulating
access to the ballot. But nowhere has it described a workable basis
for us to discern when the legislature’s regulation is appropriately
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Opinion of the Court
“reasonable” or whether the burden on the initiative right is
outweighed by “the importance of the legislative purpose.” Id. The
reasonableness inquiry is a matter committed to the legislature in the
first instance. And our cases have never identified a standard for a
judicial assessment of reasonableness.
¶63 The nature of the weighing of the burden on the initiative
right against the “importance” of legislative purpose is also a matter
undefined by our cases. This balance, moreover, is a battle of
incommensurables. It is not at all clear what it would mean for a
burden on the initiative right to be outweighed by the “importance”
of a legislative purpose. We have never explained how this weighing
is supposed to work. At its core, it seems to be nothing more than a
reservation of a judicial right to second-guess the lines drawn by the
legislature—a significant problem under a constitutional provision
that guarantees a right as limited by the terms and conditions
prescribed by the legislature. In any event the parties have offered
no workable structure for the application of this balancing test.
¶64 In time we will need to confront this problem. When we do,
I would not think we would be “duty-bound” to restate and apply
the undue burden standard as currently framed in our cases. See infra
¶ 80. Our decisions in this field will certainly trigger the doctrine of
stare decisis. But that doctrine leaves room for us to clarify and
reformulate the standards set forth in our past decisions, particularly
where they are viewed as unworkable. See Eldridge v. Johndrow, 2015
UT 21, ¶ 40, 345 P.3d 553 (noting that unworkability of the applicable
legal principle lessens the deference granted to precedents).
¶65 And the undue burden framework is the very model of
unworkability. We cannot possibly apply it without clarifying and
extending it. See supra ¶ 47 n.8 (noting the petitioners’ inability to
identify a basis for establishing that a burden is “undue” or for
balancing the incommensurable elements of the existing test, and
indicating that counsel urged us to fall back on the notion that we’ll
“know it when we see it”). Because we clearly have work to do in
explaining the governing standard, we should open the door to
doing so in a future case.
¶66 We should welcome briefing on the correct standard to
apply under article VI, section 1. One possibility would be a test
calling for deference to legislative regulation of the initiative process
“except in circumstances where such regulation forecloses any
meaningful possibility for the people to exercise the [initiative]
power.” Cook, 2014 UT 46, ¶ 39 (Lee, J., concurring in the judgment)
(emphasis omitted). Such a test could allow us to respect both the
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constitutional right to “initiate” “desired legislation” and the fact
that the right is expressly defined as a right as limited by
“conditions” adopted by the legislature. UTAH CONST. art. VI, § 1. Yet
even this test would require further clarification going forward. For
it to guide our decisions we would need to elaborate on what it
means for legislative restrictions to foreclose a “meaningful
possibility” of the exercise of the initiative power.
¶67 We need not resolve this question here. But there is a
crucial need for us to revisit and clarify the standards set forth in our
cases in the near future.11
2. The Applicability of Heightened Scrutiny Under the
One-Person, One-Vote Line of Cases
¶68 CMV’s invocation of the one-person, one-vote analysis in
Gallivan v. Walker, 2002 UT 89, 54 P.3d 1069, fails for reasons
explained in Part II.B.1. above. As we explain there, the concern that
formed the basis of our decision in Gallivan “is wholly absent here”
given that Utah’s senate districts “have roughly equal populations.”
Supra ¶ 26. This is an adequate basis for distinguishing Gallivan, and
_____________________________________________________________
11 We should also welcome briefing on a related question raised
by Justice Himonas—whether it makes sense to apply a deferential
standard of scrutiny under article VI, section 1 if we uphold a
standard of heightened scrutiny under the Uniform Operation of
Laws Clause. See infra ¶ 93. Justice Himonas raises an interesting
question. The initiative right is surely “fundamental” in the sense
that it is recognized in an express provision of the Utah Constitution.
Yet the extent of the fundamentality of this right is defined and
circumscribed by the terms of article VI, section 1. And those terms
speak quite specifically to the governing standard of scrutiny—in
emphasizing the prerogative of the legislature to regulate the terms
and conditions of the exercise of the initiative right. That suggests a
different way to resolve the tension identified by Justice Himonas—
rather than applying heightened scrutiny under the uniform
operation clause we could conclude that the standard of scrutiny is
dictated by the provision of the constitution that speaks most
specifically to the role of the legislature in this important field.
I make this observation not to prejudge the answer to this
important question. Again I will keep an open mind as the issue
arises in a future case. But I do think it important to highlight this
issue in a manner that may facilitate careful briefing going forward.
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Opinion of the Court
an appropriate ground for rejecting the equal protection claim set
forth in the CMV petition. The briefing in this case, however, has
also highlighted another problem with the petitioners’ reliance on
Gallivan. And in my view this problem merits our attention in a
future case.
¶69 The problem goes to the standard of scrutiny that applies
under the Equal Protection Clause in a case like this one. In Gallivan
a plurality of this court endorsed a strict scrutiny standard arising
from the one-person, one-vote line of precedent from the United
States Supreme Court. Specifically, the Gallivan plurality invoked
Moore v. Ogilvie, 394 U.S. 814 (1969) in support of a “fundamental”
right to vote for an initiative, and thus a strict standard of scrutiny
for laws impinging on that right. 2002 UT 89, ¶ 26.
¶70 The Moore case considered an Illinois initiative procedure
by which independent candidates could get on the ballot. Illinois
required prospective candidates to gather 200 signatures from
qualified voters in 50 of the 102 counties in the state. 394 U.S. at 815,
818–19. Reasoning that the “right to vote freely for the candidate of
one’s choice is of the essence of a democratic society,” the Moore
Court held that “[a]ll procedures used by a State as an integral part
of the election process must pass muster against the charges of
discrimination or of abridgment of the right to vote.” Id. at 818(citation omitted). Under this standard, the Court struck down the
Illinois scheme because it “applie[d] a rigid, arbitrary formula to
sparsely settled counties and populous counties alike, contrary to the
constitutional theme of equality among citizens in the exercise of
their political rights.” Id. at 818–19.
¶71 The Gallivan plurality would have invalidated Utah’s
initiative procedures on these same grounds. Our Utah procedures
required initiative sponsors to obtain signatures in twenty of Utah’s
twenty-nine counties. The Gallivan plurality stated that the
“disparity in power between the registered voters in rural counties
and the registered voters in urban counties under the multi-county
signature requirement is constitutionally impermissible, and such
invidious discrimination will not be constitutionally tolerated.”
Gallivan, 2002 UT 89, ¶ 80. And the plurality would have invalidated
the signature requirement under heightened scrutiny on this basis.
Id.¶72 This federal basis of the Gallivan plurality was unnecessary
to our ultimate disposition of the case. A majority based the decision
on independent and adequate state grounds. Id. ¶¶ 34–64. The
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federal one-person, one-vote analysis in Gallivan, moreover,
represents an extension of Moore that seems problematic.
¶73 Moore, as noted, involved a petition process to put
candidates on the ballot—it did not involve a direct ballot initiative.
And the Gallivan plurality reasoned that the “only difference
between [these cases] is that the first involves a person and the
second involves an idea.” Gallivan, 2002 UT 89, ¶ 77. Thus, without
further analysis, the plurality said that “[t]he voters’ suffrage right is
fundamental and not to be infringed, regardless of whether the
voters are voting for candidates or initiatives.” Id. That does not
follow from Moore, however.
¶74 Moore’s reasoning rests on the importance of voting for
candidates in a representative democracy. The Moore Court
specifically observed that “[t]he right to vote freely for the candidate
of one’s choice is of the essence of a democratic society.” 394 U.S. at
818 (citation omitted). This suggests that it is representation that is
fundamental to the democratic processes of both Utah and the
United States.
¶75 Direct voting on ballot initiatives is at least arguably
distinguishable. This is more reminiscent of direct democracy. And
that is not the system emplaced by the United States Constitution.
See THE FEDERALIST No. 10 (James Madison) (distinguishing our
republic from a “pure democracy”); see also Save Palisade FruitLands v.
Todd, 279 F.3d 1204, 1210 (10th Cir. 2002) (“[N]othing in the language
of the Constitution commands direct democracy . . . .”).
¶76 The one-person, one-vote principle seems limited to the
actual process of voting for candidates—and to initiatives that seek
to place candidates on the ballot so they can be voted on in the
future. See Mass. Pub. Interest Research Grp. v. Sec’y of Com., 375
N.E.2d 1175, 1182 (Mass. 1978) (strict scrutiny not merited where
issue of representation is not involved). Direct ballot initiatives,
while no doubt an important aspect of governance under Utah law,
likely do not occupy the same hallowed ground. As a purely state-
created right, ballot initiatives may not qualify as “fundamental” for
purposes of federal equal protection analysis. Todd, 279 F.3d at 1211(“[I]nitiatives are state-created rights and are therefore not
guaranteed by the U.S. Constitution.”). And if ballot initiatives are
not “fundamental” under the Equal Protection Clause, then
legislation regulating initiatives would be subject only to rational
basis review.
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HIMONAS, J., concurring
¶77 This is an open question. No binding federal precedent
resolves the matter, and the Gallivan analysis appears only in a
plurality opinion. We should decide this question in an appropriate
case in the future. We should determine whether statutes regulating
ballot initiatives are subject to heightened scrutiny under Moore or
instead are subject only to rational basis review.
III. CONCLUSION
¶78 We deny CMV’s petition on the above grounds. We reject
CMV’s statutory claim on its merits. We also reject several of CMV’s
constitutional claims on the merits. We stop short of resolving one of
these claims, however, on the ground that it implicates an
underlying dispute of material fact on the nature and extent of any
burden on the right to pursue an initiative under article VI, section 1
of the Utah Constitution. But we nonetheless deny the petition on
the ground that CMV has failed to carry its burden of identifying an
undisputed basis for the relief requested.
JUSTICE HIMONAS, concurring:
¶79 I concur in the opinion of the court, except for Part II.C. I
write separately for two reasons, both of which relate to petitioners’
article VI, section 1 claim. See supra ¶¶ 42–55. First, I write to
highlight that, in my view, this court’s opinion in Utah Safe to Learn-
Safe to Worship Coal., Inc. v. State, 2004 UT 32, 94 P.3d 217—an
opinion petitioners haven’t asked us to overturn—is controlling and
essentially dictates this outcome. And second, I write to express my
concerns regarding that opinion’s formulation of the standard of
review when conducting an article VI, section 1 analysis.
¶80 Petitioners take the position that the signature removal
provision of the election code places an undue burden on the right to
initiative and thereby violates article VI, section 1 of the Utah
Constitution. Lamentably for petitioners, this court already upheld a
similar version of the signature removal provision in Safe to Learn,
2004 UT 32, ¶¶ 44–49. Not so fast, petitioners argue: the removal
provision at issue in Safe to Learn was different enough from the
current removal provision to render Safe to Learn nonbinding. The
old removal provision, they point out, required voters seeking
removal of their signature to submit a notarized statement to that
effect to the county clerk, but the current removal provision eschews
the notarization requirement and instead requires voters to submit
five pieces of personally identifiable information to the county clerk
along with their request for removal. In my view, however, the
replacement of the notarization requirement with the personally
26
Cite as: 2019 UT 60HIMONAS, J., concurring
identifiable information requirement hasn’t changed the removal
provision in a way that would preclude Safe to Learn’s holding from
applying here.12 Therefore, having concluded that Safe to Learn
provides the controlling standard for our review of petitioners’
article VI, section 1 claim, I’m duty-bound to accede to the majority’s
opinion. That’s not to say that I’m fully on board with the Safe to
Learn standard. I’m not. I outline my misgivings below.13
¶81 Utah’s constitution was amended in 1900 to include the
people’s right to initiative. Carter v. Lehi City, 2012 UT 2, ¶ 23, 269
P.3d 141; see generally UTAH CONST. art. VI, § 1. The right to initiative
embodies the principle that the people should have the opportunity
to govern themselves, “unfettered by the distortions of
representative legislatures.” Carter, 2012 UT 2, ¶ 23; see also Gallivan
v. Walker, 2002 UT 89, ¶ 25, 54 P.3d 1069 (“[The right to initiative] is
democracy in its most direct and quintessential form.”).
Functionally, the initiative process acts as the people’s check on the
legislature’s otherwise exclusive power to legislate.
¶82 Recognizing the importance of the people’s power to
legislate, this court has held that the people’s “reserved right and
power of initiative is a fundamental right under article VI, section 1
of the Utah Constitution.” Gallivan, 2002 UT 89, ¶ 24. Analogous to
the right to vote generally, the right to initiative “guarantees
participation in the political process” and “form[s] an implicit part of
the life of a free citizen in a free society.” Id. ¶ 25 (alteration in
original) (citation omitted). Indeed, because the right to initiative is
“sacrosanct and a fundamental right, Utah courts must defend it
against encroachment and maintain it inviolate.” Id. ¶ 27.
_____________________________________________________________
12 In 2019, after we heard oral argument in this case and issued
an order denying the petition, the legislature amended the signature
removal provision yet again. The new provision requires fewer
pieces of personally identifiable information. See UTAH CODE
§ 20A-7-205(3)(a). In my view, this amendment, like the one
addressed by petitioners, hasn’t changed the provision in a way that
would preclude the application of Safe to Learn’s holding to it.
13 I recognize, of course, that the opinion of the court doesn’t
necessarily foreclose petitioners’ article VI, section 1 claim as we’ve
decided not to reach the merits of the claim. See supra ¶¶ 53–54. But
this determination is driven by the Safe to Learn standard.
27
COUNT MY VOTE v. COX
HIMONAS, J., concurring
¶83 Utah courts and courts across the country overwhelmingly
employ strict or heightened scrutiny review when evaluating
legislative enactments that implicate fundamental rights. Infra
¶¶ 84–86. This practice holds true regardless of the substance of the
fundamental right involved or nature of the challenge brought. Id.
¶84 Courts apply strict or heightened scrutiny in cases
involving fundamental rights sounding in due process. See, e.g., Jones
v. Jones, 2015 UT 84, ¶ 22, 359 P.3d 603 (noting that strict scrutiny
applies in cases involving a “fundamental right of a parent to
regulate the visitation of a child” (internal quotation marks
omitted)); Jensen ex rel. Jensen v. Cunningham, 2011 UT 17, ¶¶ 71–73,
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 subject to heightened
scrutiny” (citation omitted)); see also, e.g., Simpson v. Miller, 387 P.3d
1270, 1276–80 (Ariz. 2017) (applying heightened scrutiny to statutory
prohibition on bail for certain sexual offenses); Planned Parenthood of
the Heartland v. Reynolds ex rel. State, 915 N.W.2d 206, 237–41 (Iowa
2018) (applying strict scrutiny to a statute that imposed mandatory
waiting period on women seeking to terminate a pregnancy).
¶85 Courts likewise apply strict or heightened scrutiny in cases
involving fundamental rights grounded in equal protection or the
uniform operation of laws. See, e.g., Gallivan, 2002 UT 89, ¶¶ 42–43
(applying heightened scrutiny to legislation affecting the
fundamental right to initiative); Dodge v. Evans, 716 P.2d 270, 273
(Utah 1985) (applying strict scrutiny to statutory voting residency
requirements that affected citizens’ fundamental right to vote); see
also, e.g., In re D.W., 827 N.E.2d 466, 482 (Ill. 2005) (“[S]tatutory
classifications that affect a fundamental right violate the equal
protection clause unless they are narrowly tailored to serve a
compelling state interest.”); Rodriguez v. Brand W. Dairy, 378 P.3d 13,
24 (N.M. 2016) (“[S]trict scrutiny applies when a law draws suspect
classifications or impacts fundamental rights.” (citation omitted)
(internal quotation marks omitted)).
¶86 And finally, courts apply strict or heightened scrutiny in
cases involving plain constitutional challenges to legislation affecting
fundamental rights—that is, cases in which neither due process nor
equal protection is implicated by the legislative enactment. See, e.g.,
State v. J.P., 907 So.2d 1101, 1109–16 (Fla. 2004) (applying strict
scrutiny to juvenile curfew ordinances based on Florida
Constitution’s enumerated right to privacy and right of freedom of
movement); Tully v. Edgar, 664 N.E.2d 43, 47–48 (Ill. 1996) (“Where
challenged legislation implicates a fundamental constitutional right
28
Cite as: 2019 UT 60HIMONAS, J., concurring
. . . such as the right to vote, the presumption of constitutionality is
lessened and a far more demanding scrutiny is required. When the
means used by a legislature . . . impinge upon a fundamental right,
the court will examine the statute under the strict scrutiny standard.”
(citation omitted)); State v. Merritt, 467 S.W.3d 808, 812–13 (Mo. 2015)
(per curiam) (applying strict scrutiny to felon-in-possession law
based on Missouri Constitution’s right to bear arms provision).
¶87 However, in deciding how to evaluate legislative
restrictions on the fundamental right to initiative, the Safe to Learn
court chose to announce a standard of review that stops far short of
strict or heightened scrutiny.
¶88 The Safe to Learn standard reflects an attempt to reconcile
the status of the right to initiative as a fundamental right with
article VI, section 1’s directive to the legislature to prescribe the
“numbers,” “conditions,” “manner,” and “time” in which the right
to initiative can be exercised. UTAH CONST. art. VI, § 1(2)(a). In doing
so, this court held that article VI, section 1 claims should be analyzed
by “assess[ing] whether the [legislative] enactment is reasonable,
whether it has a legitimate legislative purpose, and whether [it]
reasonably tends to further that legislative purpose.” Safe to Learn,
2004 UT 32, ¶ 35. To evaluate reasonableness in this context, “courts
should weigh the extent to which the right of initiative is burdened
against the importance of the legislative purpose.” Id. By its own
admission, the Safe to Learn court describes this standard of review as
“bearing a resemblance to our traditional minimal scrutiny review.”
Id. ¶ 37.
¶89 In declining to apply strict or heightened scrutiny to article
VI, section 1 claims, this court has repeatedly cited the language of
article VI, section 1 as the reason for employing a standard that lands
closer to traditional minimum scrutiny than strict or heightened
scrutiny. See Cook v. Bell, 2014 UT 46, ¶ 12, 344 P.3d 634 (“[T]he right
to initiative in Utah is a qualified right, subject to legislative
regulation. Thus, while [citizens] may not be statutorily deprived of
the right to initiative, the legislature does possess the power to
define the boundaries surrounding its practice, which may have the
effect of rendering the [initiative] process more difficult.”); Safe to
Learn, 2004 UT 32, ¶ 34 (“[The right to initiative] is self-limiting in
that it grants to the legislature the authority to regulate the initiative
process. . . . Thus, applying heightened scrutiny to each and every
provision challenged under article VI, section 1 is neither required
nor appropriate.”); see also Owens v. Hunt, 882 P.2d 660, 661 (Utah
1994) (“It is axiomatic that . . . the legislature is accorded wide
29
COUNT MY VOTE v. COX
HIMONAS, J., concurring
latitude in complying with constitutional directives such as the one
contained in article VI, section 1.”).
¶90 While this court has chosen to read article VI, section 1 in a
way that affords the legislature broad discretion in regulating the
initiative process—and therefore subjects such regulation to a lower
level of scrutiny—nothing in the language or structure of article VI,
section 1 inescapably leads me to the conclusion that the directive
language mandates something less than strict or heightened scrutiny
be applied in these cases.
¶91 For example, the same language could also be read simply
as a directive to “implement[] and enable[]” the people’s right to
initiative. Gallivan, 2002 UT 89, ¶ 28. That is, the legislature’s
directive is limited to providing the voters of Utah with an “orderly”
framework within which they can exercise their right to initiative.
Sevier Power Co., LLC v. Bd. of Sevier Cty. Comm’rs, 2008 UT 72, ¶ 10,
196 P.3d 583. Once the legislature establishes the channels by which
the people can exercise their right to initiative, the legislature’s job is
complete as far as article VI, section 1 is concerned. This construction
seems sound especially when considered in conjunction with
fundamental right jurisprudence generally, a litigant’s options when
litigating right to initiative claims, and the purpose the initiative
process serves.
¶92 While purporting to require “a more exacting analysis”
than traditional minimum scrutiny review, Safe to Learn, 2004 UT 32,
¶ 37, the Safe to Learn standard stands in stark contrast to the strict or
heightened scrutiny that courts have consistently applied in cases
implicating fundamental rights. See supra ¶¶ 84–86. Although
article VI, section 1 isn’t self-executing and requires legislative
implementation, this alone doesn’t necessarily lead me to believe
that the right to initiative should be treated differently than other
fundamental rights in the context of a plain constitutional challenge.
Given the general rule that legislation affecting fundamental rights is
reviewed under strict or heightened scrutiny, it seems equally
plausible that the directive language should be understood to
operate within this framework by requiring legislative
implementation that withstands heightened scrutiny.
¶93 The distinction between the right to initiative and other
fundamental rights based on the directive language is even less
forceful when considered alongside the alternatives to a plain
constitutional challenge. Indeed, this court has held that if a litigant
can plead a viable uniform operation of laws claim affecting the right
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Cite as: 2019 UT 60PETERSEN, J., dissenting
to initiative, then that claim is evaluated under heightened scrutiny
because it involves the fundamental right to initiative. See Gallivan,
2002 UT 89, ¶¶ 36–43. In practice this creates two standards under
which the same fundamental right is reviewed: heightened scrutiny
when the claim also implicates uniform operation of laws and Safe to
Learn scrutiny when the claim is based solely on the constitutional
right to initiative. It seems peculiar, at the very least, to apply
heightened scrutiny to uniform operation of laws claims implicating
a fundamental right while denying that same level of scrutiny to
claims rooted directly in the fundamental right itself.
¶94 Furthermore, the historical backdrop against which the
Utah Constitution was amended to include the right to initiative
seems to militate against the notion that the legislature should be
afforded broad discretion in regulating the initiative process. See
supra ¶ 81. Allowing the legislature broad discretion in regulating
the initiative process undercuts the initiative process’s function as a
vehicle by which the people can govern themselves. In regulating the
initiative process, the legislature engages in the very behavior the
initiative process is meant to circumvent. Because the right to
initiative acts as the people’s check against the legislature, it seems
unusual to treat the directive language as a means by which the
legislature can check the people’s right to initiative without being
subjected to strict or heightened scrutiny review by the courts.
¶95 To conclude, I reemphasize that I feel bound today by this
court’s holding in Safe to Learn and therefore concur in the opinion of
the court, except for Part II.C. Although stare decisis compels this
result, I’ve chosen to highlight certain concerns I have regarding the
standard of review announced in Safe to Learn. In doing so, I note
that these concerns are just that—concerns—and thereby decline
here to formulate any new standard or framework for analyzing
article VI, section 1 claims.
JUSTICE PETERSEN, dissenting:
¶96 I respectfully dissent from the majority opinion. In my
view, petitioners have sufficiently shown that in this case, one
provision of the Initiative Statute, which I will refer to as the Extra-
Month Provision, unduly burdened Utah voters’ constitutional right
to initiate legislation. We have said previously that the Extra-Month
Provision is not facially unconstitutional. But petitioners have
brought an as-applied challenge to the Extra-Month Provision. And
they have shown that in operation, it gave initiative opponents an
extra thirty days to run an unopposed, unregulated campaign
31
COUNT MY VOTE v. COX
PETERSEN, J., dissenting
against the Direct Primary Initiative after initiative sponsors Count
My Vote (CMV) could no longer circulate their petition. During this
time, CMV could only watch and wait. The opposition campaign
caused only a tiny fraction of those who signed the Direct Primary
Initiative to remove their signatures. But because of how the
Initiative Statute is structured, this was enough to sink the Direct
Primary Initiative. And CMV could do nothing about it because the
Initiative Statute contains no cure period for sponsors to gather
additional signatures.
¶97 While I understand the majority’s concern with the lack of a
trial court record, I find that there are sufficient undisputed facts and
that the law is adequately clear for us to reach the merits of the
article VI issue raised by CMV. And I conclude that CMV has shown
the Extra-Month Provision unduly burdened the right of over
131,000 Utah voters to propose legislation to their fellow citizens
during the 2018 general election.
¶98 Justice Himonas raises some thought-provoking concerns
in his concurrence. I remain open to arguments along these lines.
However, I write separately because I conclude that even under the
undue burden standard outlined in Utah Safe to Learn-Safe to Worship
Coalition, Inc. v. State, 2004 UT 32, 94 P.3d 217, the Extra-Month
Provision is unconstitutional.
I. THE VOTERS’ RIGHT TO INITIATE LEGISLATION
¶99 Our state constitution vests legislative power in the Senate,
the House of Representatives, and the “people of the State of Utah.”
UTAH CONST. art. VI, § 1(1). The people can exercise their legislative
power by initiating their own legislation or requiring a referendum
on laws passed by the legislature. Id. art. VI, § 1(2). With regard to
the initiative right, our state constitution protects the right of “the
legal voters of the State of Utah” to “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.” Id. art. VI,
§ 1(2)(a)(i)(A). According to the text of our constitution, the initiative
right is granted to Utah voters in the plural. It is a right of voters to
associate for the purpose of proposing legislation to their fellow
citizens.
¶100 To place an initiative on the ballot, voters must do so “in
the numbers, under the conditions, in the manner, and within the
time provided by statute.” Id. art. VI, § 1(2)(a)(i). In this way, the
constitution gives the legislature the power and responsibility to set
the rules for the people’s initiative process. But the initiative right is
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a fundamental right included in our state constitution. Gallivan v.
Walker, 2002 UT 89, ¶ 24, 54 P.3d 1069. And accordingly the
legislature’s power to regulate it is not unfettered. We have said that
if a law regulating the initiative process places an “undue burden”
on the initiative right, that law violates article VI, section 1 of the
Utah Constitution. See Utah Safe to Learn-Safe to Worship Coal., Inc. v.
State, 2004 UT 32, ¶ 35, 94 P.3d 217 (providing that “in conducting an
article VI, section 1 analysis” courts must “determine whether the
enactment unduly burdens the right to initiative”).
II. THE INITIATIVE STATUTE AND THE
EXTRA-MONTH PROVISION
¶101 The majority opinion outlines the statute governing the
initiative process. Supra ¶ 4. One provision of the Initiative Statute
allows voters who have signed a petition to later remove their
signatures (Removal Provision). See UTAH CODE § 20A-7-205(3)(a). A
portion of the Removal Provision allows these removals to continue
for an additional thirty days after initiative sponsors have submitted
their signatures to county clerks and cannot gather any more.14 Id.
§ 20A-7-205(3)(d). I refer to this as the Extra-Month Provision.
¶102 During these thirty days, there is no more initiative
sponsors can do. If the removals cause the petition to drop below the
number of required signatures, there is no “cure period” to obtain
additional signatures. Id. § 20A-7-207(3).
¶103 Before analyzing how the Extra-Month Provision burdens
the initiative right, it is important to understand how several of the
Initiative Statute’s requirements work together. First, the Initiative
Statute requires that an initiative obtain a high level of support
before it qualifies for the ballot. It must obtain legal signatures equal
to 10 percent of all votes cast statewide for all candidates for
_____________________________________________________________
14 The Extra-Month Provision operates as follows. The Initiative
Statute requires sponsors to submit the signatures they have
obtained to the appropriate county clerk by the sooner of April 15th
before an election or 316 days after the day on which sponsors filed
their application. UTAH CODE § 20A-7-206(1)(a). But the Removal
Provision allows signers to remove their signatures up until May
15th. Id. § 20A-7-205(3)(d).
As the majority noted, supra ¶ 4 n.2, some of the relevant
statutory provisions were amended in 2019. Like the majority, I
reference the statutory provisions as they stood in 2018.
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COUNT MY VOTE v. COX
PETERSEN, J., dissenting
President in the last regular general election. Id. § 20A-7-201(2)(a). In
the 2018 election, this meant that an initiative had to receive at least
113,143 signatures statewide. See Verified Signatures for 2018
Initiatives, https://elections.utah.gov/2018-initiative-numbers (last
updated May 29, 2018).
¶104 Next, sponsors must show that support for the initiative is
distributed throughout the state. The Senate District Requirement
mandates that in twenty-six of Utah’s twenty-nine senate districts,
an initiative must obtain legal signatures equal to 10 percent of all
votes cast in a senate district for all candidates for President in the
last regular general election. UTAH CODE § 20A-7-201(2)(a).
¶105 The combination of the Extra-Month Provision and the
Senate District Requirement allows initiative opponents to defeat an
initiative that would otherwise meet the requirements of the
Initiative Statute by obtaining the names of everyone who signed the
petition, targeting a few senate districts, and approaching signers
directly to solicit removals. Because an initiative must maintain a
high level of support in at least twenty-six senate districts,
opponents can sink an initiative by persuading a tiny fraction of
signers to remove their signatures.
¶106 Most importantly, the Extra-Month Provision allows an
opposition campaign to do this for thirty days after sponsors cannot
gather any additional signatures. Sponsors have no chance to replace
the small number of removals. See id. § 20A-7-207(3) (“Once a
petition is declared insufficient, the sponsors may not submit
additional signatures to qualify the petition for the ballot.”).
¶107 On top of this, initiative opponents do not have to comply
with any of the standards imposed upon initiative sponsors.
Initiative sponsors must comply with numerous requirements
including: (1) filing an application with the lieutenant governor that
includes information about the sponsors, a copy of the proposed law,
and a statement on whether signature gatherers may be paid to
gather signatures, id. § 20A-7-202(1)–(2); (2) holding at least seven
public hearings throughout Utah before circulating initiative
petitions for signature, id. § 20A-7-204.1(1)(a); and (3) upon meeting
the foregoing requirements, ensuring that signature gatherers meet
the statutory requirements, id. § 20A-7-205(2). Opponents are not
subject to any specific requirements.
¶108 The majority concludes in its analysis of CMV’s equal
protection and uniform operation of laws claims that initiative
proponents and opponents are not similarly situated, so the
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Initiative Statute does not need to treat them equally. Supra ¶¶ 30–
32. Even accepting this as true for purposes of those analyses,
whether the different treatment of proponents and opponents causes
an undue burden on the initiative right is an entirely different
question.
III. UNDUE BURDEN ANALYSIS
¶109 And the answer to that question is yes, the Initiative
Statute’s differential treatment of proponents and opponents did
unduly burden the initiative right here. While a number of
provisions work together to set a high bar for initiatives to make it
onto the ballot, here it was the Extra-Month Provision that crossed
the constitutional line.
¶110 I have no quarrel with the general notion of allowing
individual voters who have changed their minds to remove their
signatures from a petition. But the majority confirms today that the
statute also permits an organized opposition campaign to solicit as
many removals as possible during the extra thirty days, after
sponsors can gather no more signatures. And while nothing in the
statute explicitly condones or even contemplates such a practice, it is
correct that the statute does not explicitly prohibit it. So the same
statutory language that permits an individual voter to remove his or
her signature during the extra thirty days also allows an organized
removal campaign to operate unopposed for a month when sponsors
cannot respond with additional offsetting signatures. This disrupted
CMV’s ability to demonstrate that it had sufficient public support to
meet statutory requirements.
¶111 To be clear, I do not argue that the law cannot allow
signers to remove their names at all—just that the period within
which they can do so should either end at the same time sponsors
must submit their signatures to county clerks, or that sponsors must
have an adequate cure period.
¶112 To determine whether a statute complies with article VI,
section 1 of the Utah Constitution, we have articulated an “undue
burden” test. Utah Safe to Learn-Safe to Worship Coal., Inc. v. State, 2004
UT 32, ¶ 35, 94 P.3d 217. Under this test a court should analyze:
(1) “whether the [legislative] enactment is reasonable,” (2) “whether
it has a legitimate legislative purpose,” and (3) “whether the
enactment reasonably tends to further that legislative purpose.” Id.In assessing the reasonableness of the law, a court “should weigh the
extent to which the right of initiative is burdened against the
importance of the legislative purpose.” Id. We have said that this
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COUNT MY VOTE v. COX
PETERSEN, J., dissenting
inquiry “bear[s] a resemblance to our traditional minimal scrutiny
review,” but “requires a more exacting analysis.” Id. ¶ 37.
¶113 The majority criticizes this test as lacking a precise
standard of scrutiny. Supra ¶ 47 n.7. And I am certainly open to
clarifying our case law in this area. But the undue burden test is
currently controlling precedent. And it is what CMV had to work
with. Accordingly, I apply our precedent to the facts and arguments
CMV has advanced.
¶114 The second and third steps of the undue burden test are
not really in dispute. The Removal Provision in general has a
legitimate legislative purpose. Its purpose is to allow petition signers
to remove their signatures.15 The lieutenant governor’s briefing does
not identify any other purposes of the Removal Provision.16 This
court has long said that voters have a right to remove their
signatures from a petition. Halgren v. Welling, 63 P.2d 550, 556 (Utah
1936). And I do not contend otherwise.
¶115 And it is clear that the Removal Provision reasonably
tends to further this purpose. It directly provides a mechanism for
voters who change their minds for whatever reason to remove their
signatures from a petition. Notably, however, the law could still
_____________________________________________________________
15 In determining the legislative purpose of an enactment, a court
may consider any rational purpose that “can be reasonably imputed
to the legislative body.” Utah Safe to Learn-Safe to Worship Coal., Inc. v.
State, 2004 UT 32, ¶ 36, 94 P.3d 217 (citation omitted) (internal
quotation marks omitted).
16 Intervenor Keep My Voice argues that preventing fraud is a
purpose of the Removal Provision. However, there are specific
provisions in the Initiative Statute that directly address the integrity
of the initiative process and entrust county clerks with validating
signatures and confirming those signatures are linked to registered
Utah voters. UTAH CODE §§ 20A-7-206(2)–(3), -206.3. And the
Removal Provision is not directed at or limited to fraud prevention.
It does not limit removals to those instances when a signer claims his
or her signature was fraudulently obtained or forged. If the Removal
Provision were so limited, it would be a much narrower provision
and the undue burden analysis would be very different. But the
Removal Provision is not limited in this way. Rather, it allows a
signer to remove his or her signature for any reason.
36
Cite as: 2019 UT 60PETERSEN, J., dissenting
accomplish its purpose of permitting signers to remove their names
without allowing them to do it for an additional thirty days after
sponsors have relied upon those signatures and cannot obtain any
more. And the other alternative, providing initiative sponsors with a
cure period, would not impede or truncate signers’ ability to remove
their signatures at all.
¶116 It is with regard to the first step, the reasonableness
inquiry, that the Extra-Month Provision runs into constitutional
trouble. To assess reasonableness, we weigh the extent that the right
to initiate legislation is burdened against the importance of the
legislative purpose. See Safe to Learn, 2004 UT 32, ¶ 35.
¶117 With regard to determining the extent to which the
challenged provisions burden the initiative right, the majority
concludes that we do not have sufficient, undisputed facts. Supra
¶¶ 52–53. And I agree that a record is usually necessary to assess
whether a law unduly burdens the initiative right, because it is
largely a question of fact. As this court explained in Cook v. Bell,
In contemplating the quantitative level at which
restrictions cross the threshold from constitutional
regulation to an unconstitutional abrogation of the
fundamental right to initiative, courts consider the
qualitative net effect of all the relevant statutory
restrictions. Whereas in isolation a provision may not
rise to the level of being unduly burdensome, the
combined effect of multiple, otherwise permissible,
provisions may cross that threshold.
2014 UT 46, ¶ 18, 344 P.3d 634.
¶118 It is generally difficult to assess the “qualitative net effect”
of the relevant statutory restrictions without a record. But here, we
can proceed with the facts before us. This is because CMV is not
arguing that the Initiative Statute’s requirements are too difficult to
meet. Rather, they essentially argue that an opposition campaign
used the Extra-Month Provision to run an unopposed, overtime
removal effort. And this disrupted the process in a manner that
burdened CMV’s ability to show that the Direct Primary Initiative
did have sufficient public support to meet the Initiative Statute’s
requirements. The facts they have provided are sufficient to show
this.
¶119 CMV has demonstrated that the Extra-Month Provision
led to the Direct Primary Initiative’s defeat. The lieutenant
governor’s webpage showed that CMV submitted 159,881 signatures
to county clerks statewide. See Verified Signatures for 2018 Initiatives,
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COUNT MY VOTE v. COX
PETERSEN, J., dissenting
https://elections.utah.gov/2018-initiative-numbers (last updated
May 29, 2018). As required by statute, the county clerks then verified
the signatures and removed any that did not meet the required
standards. See id. After discounting those signatures, CMV had
gathered 131,984 signatures statewide, with a sufficient number of
signatures in twenty-six of the twenty-nine senate districts to be
placed on the ballot. Id. In total, the Direct Primary Initiative had
18,841 signatures more than was necessary to qualify for the ballot.
See id.¶120 But after CMV could no longer circulate its petitions, Keep
My Voice began its removal campaign. Keep My Voice obtained the
names of voters who had signed the Direct Primary Initiative
petition. They targeted three senate districts, went to individual
signers’ doors with removal forms, and attempted to persuade
signers to remove their signatures.
¶121 At the end of their thirty-day campaign, Keep My Voice
submitted completed removal forms en masse to the lieutenant
governor. After counting these removals, the lieutenant governor
determined that while CMV still more than met the statewide 10
percent requirement, the removals caused the Direct Primary
Initiative to fall short in the three districts Keep My Voice targeted
by a slim margin: in District 7 by 182 signatures, District 21 by 179
signatures, and District 29 by 211 signatures.
¶122 Because CMV had no opportunity to return to those
districts and cure the slim shortfall, an initiative that over 131,000
Utah voters wanted to propose was blocked by a margin of 572
removed signatures.
¶123 This data shows that, in operation, the Extra-Month
Provision burdened the initiative process in two important ways.
First, the statutory thresholds, challenging to begin with, became
illusory. They were moving targets that CMV could not pin down
until it was too late. This presents a problem for any initiative effort.
How many additional buffer signatures are enough to hold off an
opponent that might materialize after sponsors submit their
signatures? Initiative sponsors cannot know the answer to this
question until it is too late to do anything about it.
¶124 Second, the statute’s different deadlines for submitting
and removing signatures permit the process to become unfair and as
a result, inaccurate. If a proposition faces an organized removal
campaign—which happened here and which the majority says is
permitted by the Initiative Statute—the process no longer accurately
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measures whether public support for the initiative meets the
“numbers” set by the legislature. Here, it was not that the Initiative
Statute’s requirements were too difficult for CMV to meet; it was
that the Extra-Month Provision (and the removal campaign it
allowed) disrupted CMV’s ability to demonstrate it could meet those
requirements. Even an initiative that has enough support to meet the
Initiative Statute’s requirements risks being blocked from the ballot.
¶125 In arguing that the Initiative Statute does not burden the
initiative right, the lieutenant governor points out that three
initiatives did qualify for the 2018 ballot. I agree that an initiative
might not be impacted at all if it does not face a meaningful removal
campaign. This was the case with two of the initiatives that qualified
for the ballot in 2018.17 But the burden caused by the Extra-Month
Provision cannot be judged based only on how it impacts those
initiatives that do not suffer its full effects. CMV’s as-applied
challenge shows that when an initiative is opposed by an organized
removal campaign, the process no longer works fairly or accurately.
¶126 And the third example provided by the lieutenant
governor—Medical Cannabis—provides further evidence that the
Extra-Month Provision unduly burdens the initiative right. Medical
Cannabis qualified for the 2018 ballot with the most signatures of
any initiative. And voters approved the proposition during the 2018
general election, which is the best indicator of overall support for the
initiative. But because it faced a removal campaign, Medical
Cannabis almost did not qualify for the ballot at all.
¶127 Medical Cannabis received 153,894 valid signatures, but it
also received 1,425 signature removals. See Verified Signatures for 2018
Initiatives, https://elections.utah.gov/2018-initiative-numbers (last
updated May 29, 2018). These removals nearly caused Medical
Cannabis to fall short of the signatures needed in two of the
twenty-seven districts where it had met the signature requirements.
Id. Medical Cannabis satisfied the signature requirements in District
22 by a mere thirty-five signatures and in District 29 by just
sixty-nine signatures. Id. That is telling evidence that the
_____________________________________________________________
17 The lieutenant governor’s election website cited zero valid
removed signatures with respect to Independent Redistricting and
four valid removed signatures with respect to Utah Decides
Healthcare. See Verified Signatures for 2018 Initiatives,
https://elections.utah.gov/2018-initiative-numbers (last updated
May 29, 2018).
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COUNT MY VOTE v. COX
PETERSEN, J., dissenting
Extra-Month Provision threatens to “thwart[] the placement on the
ballot of widely supported initiatives.” Gallivan v. Walker, 2002 UT
89, ¶ 50, 54 P.3d 1069. An initiative that was actually approved in the
general election by a majority of voters would not have been on the
ballot if opponents would have caused just 104 more signers to
remove their names.
¶128 In my view, the information before us shows that the
removal campaign against the Direct Primary Initiative—as
permitted by the Extra-Month Provision—disrupted the initiative
process in a way and to a degree that sponsors could not predict and
to which they could not respond. In this way, the Extra-Month
Provision placed a heavy burden on the initiative right.
¶129 The next question in assessing reasonableness is how
important the legislative purpose of permitting signature removals is
in comparison to the heavy toll it took on the initiative right here. In
examining this, it is telling that the law does not permit
mind-changing in other analogous contexts. For example, in an
actual election, the Election Code does not permit voters to go back
to the county clerk and change their votes, and certainly not after
election day. The reason is obvious—it would erode the finality,
certainty, and efficiency of our elections.
¶130 Another section of the Election Code provides that
individuals may qualify for the primary election ballot if they submit
a nomination petition that was “signed by at least 2% of the
registered political party’s members who reside in the political
division of the office that the individual seeks.” UTAH CODE § 20A-9-
403(3)(a)(ii). But the Election Code does not allow voters to remove
their signatures from candidate nomination petitions at all and
certainly not after those petitions have been filed.
¶131 Fundamentally, in the initiative, referendum, nomination,
and election processes, the law imposes deadlines by which voters
know they must make a choice. Voters understand this—they
generally are unable to go back to the county clerk and change their
votes. This does not mean that permitting mind-changing has no
value, just that it is not something that is typical, expected, or
sacrosanct in our election process.
¶132 And extending removals for an additional thirty days is
not necessary to promote the basic purpose of allowing signers to
remove their signatures. The purpose could still be achieved even if
the deadline for removals and submissions were the same. Or if
sponsors were given a cure period, the initiative right could be
40
Cite as: 2019 UT 60PETERSEN, J., dissenting
protected without modifying or shortening signers’ ability to remove
their signatures at all.
¶133 The Extra-Month Provision in its current form allows
opponents of an initiative to run an unopposed removal campaign
for a month after sponsors have submitted their signatures. This is
done at the expense of Utah voters’ right to initiate legislation. CMV
has shown that, here, the result was that a widely supported
initiative was blocked from the ballot.
IV. OUR PRECEDENT IN SAFE TO LEARN AND HALGREN
¶134 This court addressed a challenge to the Removal Provision
in much the same form in Utah Safe to Learn-Safe to Worship Coalition,
Inc. v. State, 2004 UT 32, 94 P.3d 217. The lieutenant governor argues
we are bound by our decision in that case that the Removal
Provision did not unduly burden the initiative right. But this
misapprehends the nature of the undue burden analysis, and the
very different evidence that was before us in Safe to Learn.
¶135 In Safe to Learn, the appellants were faced with the
prospective application of, among other provisions, the then-existing
signature removal provision.18 Id. ¶ 6. After Safe to Learn sponsors
had filed their initiative application, an amended initiative statute
with additional requirements went into effect. Id. ¶¶ 4–5. The
lieutenant governor notified sponsors that they would have to
comply with some of those new requirements. Id. ¶ 5. The sponsors
filed a lawsuit challenging five provisions of the amended initiative
statute, four of which were introduced by the amendments, and the
then-existing removal provision, which existed in the statute
previously and was retained in the amendments. Id. ¶ 6. But these
provisions, including the removal provision, had not yet been
applied to their petition. See id. ¶¶ 5–6. Because the statute had not
yet been applied to them, the sponsors could mount only a facial
_____________________________________________________________
18 The Removal Provision in effect at the time of this initiative
petition differs from the then-existing signature removal provision in
that it does not require voters seeking removal of their signature to
submit a notarized statement. Instead, it requires voters seeking
removal of their signature to submit a statement that includes the
voter’s name, resident address, and signature. See UTAH CODE § 20A-
7-205(3)(b)(i). I agree with the majority that these differences are
inconsequential for the purpose of distinguishing Safe to Learn from
this case.
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COUNT MY VOTE v. COX
PETERSEN, J., dissenting
challenge. Unlike CMV, they had no evidence of the burden the
removal provision had caused them in operation.
¶136 I agree that without such evidence, speculation that the
Removal Provision will unduly burden an initiative based only on
the statutory language is insufficient to overcome the presumption
of constitutionality. And that is all we had in Safe to Learn. On that
record, we reiterated this court’s holding in Halgren v. Welling, 63
P.2d 550 (Utah 1936), that a signer has a right to withdraw his or her
signature. See Safe to Learn, 2004 UT 32, ¶¶ 47, 49.
¶137 This court held in Halgren that petition signers should be
permitted to withdraw their signatures “at any time before the
petition has been acted upon.” 63 P.2d at 556. We concluded this as a
matter of common law, noting that “[t]here is no provision in the
Initiative and Referendum Law of the State of Utah relating to the
withdrawal of names from a petition after it has been once signed.”
Id. But in Halgren, this court was not faced with a constitutional
question of any kind and certainly not the argument CMV advances
that the Removal Provision violates article VI of the Utah
Constitution. In Halgren, this court simply held that, as a matter of
common law, an individual signer has the right to remove his or her
signature from a petition. See id. at 560–61. That does not answer the
question before us now—whether the undisputed evidence shows
that as applied to the Direct Primary Initiative, the Extra-Month
Provision unduly burdened Utah voters’ initiative right.
¶138 In contrast to Halgren and Safe to Learn, we are faced with
an as-applied challenge to the Extra-Month Provision with data
showing how it operated to defeat the Direct Primary Initiative. In
Safe to Learn, this court “recognize[d] the potential difficulty [the
signature removal] provision may cause to initiative sponsors.” 2004
UT 32, ¶ 49. But here, CMV has presented us with evidence of the
actual burden the Extra-Month Provision caused the Direct Primary
Initiative.
¶139 Assessing whether an undue burden exists is a fact-based
analysis. The appellants in Safe to Learn challenged the then-existing
removal provision on its face, and that challenge failed to overcome
the presumption of constitutionality. See id. ¶¶ 60–61. But CMV has
presented us with evidence of how the Extra-Month Provision
operated in practice, as applied to the Direct Primary Initiative. Our
holding in Safe to Learn does not prevent us from analyzing the
evidence before us here, in accordance with the legal standards we
outlined in that case.
42
Cite as: 2019 UT 60PETERSEN, J., dissenting
CONCLUSION
¶140 CMV has amply demonstrated that in their case, the Extra-
Month Provision unduly burdened the right of over 131,000 Utah
voters to propose the Direct Primary Initiative to their fellow
citizens. For this reason, I dissent.
43