Lawyers for the Count My Vote initiative asked the Utah Supreme Court on Wednesday to place it on the Nov. 6 ballot, arguing that processes that disqualified it are unconstitutionally tilted to give opponents huge advantages.
They are so unfair that “a single motivated group, or an individual, could single-handedly keep any initiative off the ballot,” argued Count My Vote attorney Matthew Cannon.
That comes after an opposition group called Keep My Voice — funded mostly by ultraconservative GOP millionaire Dave Bateman — torpedoed the initiative that collected nearly 132,000 verified signatures by persuading a relative handful to remove their names in two state Senate districts, where it failed by a combined 100 signatures.
But several justices argued that the Legislature, not the court, has the right to set procedures for initiatives. They said overriding that would require proof of truly egregious unfairness — and questioned if Count My Vote showed that.
It may depend on the level of scrutiny they apply. “It’s a pretty close call under heightened scrutiny,” said Justice Dino Himonas. But he said similar past cases have used a less-strict standard requiring showing only a general rational basis for legislative rules, and questioned if Count My Vote proved a need for a change.
Count My Vote seeks to solidify a new state election law that the Utah Republican Party has sued to overturn, so far unsuccessfully. The law allows candidates to qualify for a primary election by gathering signatures and/or through the traditional caucus-convention system.
Conservatives argue the law allows electing people who are “Republicans in name only.” Moderates say returning to only the caucus-convention system would give the right wing more power, and lead to nominating people outside the political mainstream.
To qualify for the ballot, state law requires an initiative to collect signatures totaling 10 percent of the votes cast in the last presidential election, now about 113,000 statewide — but also requires meeting that 10 percent mark in 26 of the state’s 29 Senate districts.
After signatures are verified, 30 days are allowed for signers to remove their names if they choose. Cannon argued that provides “a treasure map” of names for critics to target for signature removal in a few Senate districts, which he argues is a much easier task than petitioners face in collecting more than 100,000 signatures statewide initially.
Cannon noted that a separate initiative to legalize medical marijuana barely survived — by a few hundred signatures — a similar organized attack, even though it reported collecting nearly 200,000 signatures initially.
Cannon said if the court allows current procedures to stand, future initiatives would need to collect 200,000 signatures or more to ensure reaching the ballot — requiring signatures of nearly one of every five people who voted in the last election, possibly too-high a hurdle.
But the state’s lawyer, Solicitor General Tyler R. Green, argued the 30-day period for name removal is protection against fraud, allowing people to remove signatures in cases of forgery or where they were led to believe they were signing something else.
Morgan Philpot, attorney for Keep My Voice, told justices such fraud did occur — but justices said that was not proven in evidence given to them.
Chief Justice Matthew B. Durrant said the right to petition is an individual right, not a group right, and suggested that current procedures protect the right of individuals to choose whether to sign petitions or even remove their names.
But Justice Paige Petersen said voters in elections are not given 30 days to change their minds. She said petitioners could still have a right to remove signatures before regular submission deadlines, but allowing 30 days beyond that seems only to gives organized opposition an extra chance to fight an initiative.
Justices are expected to rule before Aug. 31, the deadline for Lt. Gov. Spencer Cox to certify the final ballot to allow printing before early copies are sent to members of the military and other voters living abroad.
After the court arguments, former Utah Gov. Mike Leavitt — co-chairman of Count My Vote — said the case is about whether “the system is lopsided. I believe it is. It needs to be changed.”
He said the new election law has allowed candidates who would have been eliminated at party conventions to appear on primary ballots and win office — giving voters more direct power. Polls show majorities want to protect that law, but he said procedures allowed “a very, very small group of people” to block that.
Phill Wright, a former vice chairman of the Utah Republican Party and opponent of the new election law, said initiative procedures are fair. “Count My Vote had eight months to organize a campaign” during the period allowing signature gathering, he said, adding that the opposition “had 30 days. So which group had more time?”