As Count My Vote organizers have gone through the thousands of signatures that were thrown out by county clerks, there were some recurring themes.
In a number of instances, the clerks decided the signature didn’t match closely enough with the voter’s registration card — because, of course, signatures are never different.
How many were improperly discarded? We don’t really know, at least not yet.
We do know nearly 28,000 of Count My Vote’s signatures were thrown out — 3,857 because they didn’t match the voter record.
Unlike when you vote by mail — where a mismatched signature is followed up with a postcard giving the voter an opportunity to verify the ballot — there is no opportunity to double check for an initiative.
Nor is there an appeals process for the 17,780 signers whom clerks determined to not be registered, even though Count My Vote says it has identified some of those who are on the rolls but are “inactive” because they haven’t voted in the past two general elections.
There are about a quarter-million inactive voters in the state. Some have probably moved, some may be dead, but there are surely others who are just that — inactive — and their signatures should be counted, too.
Would it have made a difference? It’s impossible to say. Count My Vote came up a combined 570 signatures short in three senate districts, so it’s possible.
The Utah County Clerk accidentally overlooked more than 100 signature packets that were submitted to his office, and 20 more packets are still unaccounted for in other counties.
The Legislature needs to fix these flaws. It should also allow the counting of signatures from Utahns who register to vote at the same time they sign the petition. We let voters register the day of an election, so why not apply the same standard for signing a petition?
But there is a larger, more fundamental problem, and that is the Legislature has made the initiative process so difficult it is denying the public a constitutionally guaranteed right.
That seems counterintuitive, since three initiatives made it to the ballot. But two — the Medicaid expansion and redistricting initiatives — had no real opposition trying to persuade voters to remove their names to knock the initiative off the ballot.
The other that did have opposition, the medical marijuana initiative, gathered a record number of signatures — more than 200,000 — and still came within 104 signatures in two districts of being knocked off the ballot.
That’s what initiatives are up against, and it is an incredibly difficult bar to clear.
Article I of Utah’s Constitution makes it clear that voters are, in fact, co-equal with the Legislature when it comes to making laws: “All political power is inherent in the people … and they have a right to alter or reform their government as the public welfare may require.”
In 2002, the Utah Supreme Court struck down a portion of Utah’s initiative law that required supporters to meet signature thresholds in 20 of 29 counties, saying it put too heavy a burden on the proponents, made it too easy for opponents to knock initiatives off the ballot, and let rural counties with small populations trump the will of the majority of the state.
“Because of the fundamental nature of the right of initiative and its significance to the political power of registered voters of the state, the vitality of ensuring that the right is not effectively abrogated … is of paramount importance,” the court wrote.
Since then, the Legislature has made it even harder, leaving even less wiggle room by requiring a minimum number of signatures in 26 of 29 state Senate districts.
And the Legislature has made it much easier for opponents to get signatures removed.
For years, in order to get a signature removed, a voter had to submit a notarized form requesting the removal. That notary requirement changed in 2010 and opened the floodgates for opponents to go door-to-door in the counties with the smallest margin to torpedo the ballot measures, as we saw in recent weeks.
Gov. Gary Herbert, who signed that controversial 2010 law, now says the process is flawed and should be reassessed.
Count My Vote would have cemented into place a signature-gathering path to the primary ballot, and reduced the number of signatures required, while leaving the traditional caucus-convention system in place. It was popular with the public. Poll after poll going back years has consistently shown that two-thirds of the public supported it. There were millions of dollars spent pushing it forward, and you end up with a fringe group using dubious tactics to deprive Utahns of their constitutional right to the initiative.
It needs to stop.
Within the next two weeks, Count My Vote’s organizers will ask the Utah Supreme Court to weigh in. They will not only ask the court to make sure the signatures of those who willingly and legally signed the petitions are counted, they will challenge the constitutionality of the initiative law and removal process generally.
Counting the omitted signatures should be a no-brainer. But more fundamentally, the court should follow the long line of judicial precedent supporting the public’s access to an initiative process and strike down Utah’s law.
“Because the people’s right to directly legislate through initiative and referenda is sacrosanct and a fundamental right,” the Utah Supreme Court wrote in 2002, “Utah courts must defend it against encroachment.”
That is even more true today.
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