Count My Vote asks Utah Supreme Court to put direct primary initiative on the ballot

(Scott Sommerdorf | Tribune file photo) Taylor Morgan of Count My Vote speaks at a public hearing at the Whitmore Library in Cottonwood Heights on Friday, Oct. 27, 2017. The Count My Vote ballot initiative seeks to ratify Utah's dual-track election law, which allows candidates to qualify for their party primary by gathering signatures.

Utah election law improperly and unconstitutionally favors the opponents of a ballot initiative, according to Count My Vote, impeding the right of residents to enact law directly through a vote of the people.

This was the main thrust among the arguments in a petition to the Utah Supreme Court filed Friday by the organizers of Count My Vote, which is seeking to ratify the law allowing candidates to gather signatures to get on the ballot and to ease its requirements.

“Citizens have the right to petition, and it should not be overly burdensome,” said Rich McKeown, who serves as executive co-chairman of Count My Vote with former Gov. Mike Leavitt. “In this case, it is. It is because a small group is able to thwart the efforts of a significant number of people.”

Voters will weigh in on several grass-roots initiatives this fall, including legalization of medical marijuana, Medicaid expansion and the creation of an independent advisory panel on political redistricting.

But despite collecting more than 131,000 voter signatures statewide, Count My Vote fell short of minimum requirements in three state Senate districts. And that failure was a direct result of efforts by opponents of Count My Vote to persuade Utahns to rescind their signatures.

That provides an effective veto to initiative opponents, Count My Vote argues in its court challenge, if they can “cajole” a small subgroup of voters to overturn their signatures.

Utah Lt. Gov. Spencer Cox and the clerks of Davis, Utah and Washington counties are named in the Supreme Court petition. The initiative group asserts that Cox erred in failing to qualify Count My Vote for the Nov. 6 ballot, because of unconstitutionally burdensome requirements and misinterpretation of state law by the county clerks who processed signature-removal requests.

Kirsten Rappleye, Cox’s chief of staff, declined to comment, citing policies regarding ongoing litigation.

“The attorney general’s office has received the filing and will be reviewing it in the coming days,” she said.

Initiative groups are held to strict requirements, such as holding public meetings throughout the state and verifying the age and residency of signature gatherers. But the opponents who ask voters to remove their signatures have no comparable hurdles and need only target a fraction of petition signers in select Senate districts with the smallest margins.

“Unlike the initial gathering of petition signatures,” the court challenge states, “those who sought the removal of signatures did not have to satisfy virtually any requirements.”

Count My Vote also objects to the mass collection of signature-removal requests, arguing that a proper interpretation of Utah law would require voters to individually request county clerks to exclude their signatures, either in person or by mail.

“We feel some confidence that we’ve put together a good case for [the court] to consider,” McKeown said.

But Brandon Beckham, director of Keep My Voice, said the challenge of removing signatures is higher than an initiative’s initial signature collection. His group originally sponsored its own competing ballot initiative to retain only the caucus-convention system for candidate selection, but that effort was abandoned to instead focus on peeling signers away of Count My Vote.

That required a public records request to sort through signature lists, Beckham said, followed by outreach to thousands of voters to persuade them to rescind. And all of that, Beckam said, had to be completed in the comparably narrow window after Count My Vote had submitted his signatures for verification.

“It’s very hard to do the removal process,” he said. “We followed the law. We did everything we could.”

Last month, Utah Gov. Gary Herbert said the initiative process “becomes unfair” when a small group of voters is able to undo a statewide signature-collection campaign by rescinding support.

Herbert said court action or legislative changes would likely be needed to resolve questions around ballot access.

“Our initiative petition process needs to be rethought,” he said.

And Sen. Curt Bramble, R-Provo, said Friday that changes to the initiative process have yet to be tested in court. Bramble sponsored the law at the heart of Count My Vote, allowing political candidates to qualify for their party’s primary through signature collection or by vote of caucus and convention delegates.

He said the dual-track nominating process appears to be working, but that Count My Vote raises a valid question of whether the requirements for initiatives are too strict.

“The initiative process itself may need to have some amendments,” Bramble said. “I think it’s appropriate for the courts to review it.”