With the 2019 legislative session reaching its midway point this week, Utah lawmakers already have repealed and replaced in state code two out of three successful 2018 ballot initiatives.
But while concerns have been raised by legislators about the third initiative — Proposition 4, which creates an independent redistricting commission with the aim of mitigating gerrymandering — no direct attempts have yet materialized to amend, restrict or repeal the voter-approved law.
“Until we think we’ve got it right, you probably won’t see much,” Senate President Stuart Adams, R-Layton, said Friday. “With all the other [initiatives] we tried our best.”
A key distinction for Prop 4 may be its timeline, which begins in earnest after the 2020 census. Legislative leaders say that allows more breathing room for potential legislation or court challenges than Propositions 2 and 3, which launched medical marijuana and Medicaid programs in the immediate short term.
But that doesn’t mean the initiative — which passed with a razor-thin statewide majority — will be allowed to take effect as currently written in state code.
“We’re not into the [redistricting] process until 2021, and it’s 2019 now. We have this year, next year and maybe the 2021 session,” Adams said. “I think there’s a lot of discussion — the timing of when it runs is unclear.”
Among the more likely lawmakers to sponsor amendments to Prop 4 is Sen. Curtis Bramble, R-Provo, who has been a leader in the Senate on election law.
Bramble has requested a bill file with the ambiguous title “Election Law Changes," but he told The Salt Lake Tribune that he does not yet know whether he will run anything this year.
“My concern is that we have good public policy consistent with the [state] constitution,” Bramble said.
He declined to discuss his opinion toward Prop 4. But Republican lawmakers frequently cite two potential areas of conflict within the initiative, independent of their personal support or objection to the creation of an independent redistricting commission.
First, the initiative as written establishes a right to sue the state over its voting maps for any person who resides in Utah or whose principal place of business is located in Utah. Second, the initiative empowers the chief justice of the Utah Supreme Court to recommend one or more voting maps to the Legislature for final approval in the event the redistricting commission fails to reach a consensus.
Critics suggest the involvement of the judicial branch violates the separation of powers — the Utah Constitution designates the legislative branch as having power over redistricting — while initiative supporters argue that lawmakers would still have the final say on voting maps, and the ability to accept or reject the recommendations of the commission or chief justice.
Better Boundaries, the organization behind Prop 4, declined to participate in an interview for this article. But co-Chairman Jeff Wright issued the following statement to The Tribune:
“We are closely monitoring the process and it’s our understanding the Legislature has not decided whether they intend to address Prop 4 this session,” Wright said. “From our perspective the Legislature stands to benefit from Proposition 4 because the essence of the law is about good government.”
House Minority Leader Brian King, D-Salt Lake City, is an attorney and served on the advisory board for Prop 4. He said critics of the initiative raise unique legal questions but that he wouldn’t expect the initiative to be struck down in court.
“I don’t think [a lawsuit] is likely to succeed,” King said. “But I would not be one saying they’re frivolous challenges.”
King said he has not heard of impending legislative challenges to the initiative during the current session.
“It’s more likely than not that we get to March 14 and we do not see a bill against Prop 4 like we saw with [Props] 2 and 3,” King said. “But I wouldn’t say it’s more than a 60 or 70 percent chance at this point.”
Both December’s vote to replace Prop 2 with a state-run medical marijuana program and last week’s vote to replace Prop 3 with a partial Medicaid expansion occurred largely along party lines.
Those initiatives also secured a larger majority of Utah voters — 52.8 percent and 53.3 percent for Props 2 and 3, respectively — than Prop 4′s 50.3 percent total, yet were still described as lacking a clear mandate by some Republican lawmakers.
King said most Democrats in the Utah Legislature would likely oppose any similar effort to dramatically alter Prop 4, but he added that it’s a challenging topic to debate. More than Props 2 and 3, King said, the merits around the issue of gerrymandering and redistricting can be lost to partisan arguments.
“It’s obvious that [Prop 4] is going to disfavor whoever is in power and favor those who are out of power,” King said, “because those that are in power, obviously under the status quo, get to draw the maps.”
Utah Democrats currently have less representation in the state Legislature than their share of the statewide popular vote, with one in five House seats held by the minority party despite one in three votes in November going toward a Democratic candidate.
Sen. Derek Kitchen, D-Salt Lake City, said there’s a role for the Legislature to play in cleaning up and improving laws that are passed through initiative. But any changes, he said, should preserve the spirit of what the public supported.
“There’s a sentiment in the community that the Legislature doesn’t respect democracy,” he said. “When we talk about redistricting, we have to be extra sensitive and aware of those feelings and possibly even do a better job of communicating.”
And while no bill, yet, directly addresses Prop 4, a number of legislative proposals would alter the procedure for placing an initiative on the ballot. Those bills include requiring that any initiative list its estimated budgetary costs and revenue sources at the top of its ballot listing, and altering the deadlines and procedure for submitting petition signatures or removing a person’s signature from a petition.
Rep. John Knotwell, R-Herriman, chairman of the House Government Operations Committee, said many of those bills — and potential Prop 4 legislation — would likely pass through his committee. He said he’s unaware of anyone looking to alter the redistricting initiative this year but added that the number of initiative-related bills suggests lawmakers are not shying away from the subject.
“There will be a bunch of other bills on the initiative process, they’re already numbered and out,” Knotwell said. “I don’t get a sense that there’s fatigue.”
On Wednesday, Utah Gov. Gary Herbert told The Tribune’s “Trib Talk” podcast that the idea of having good recommendations for voting maps is important and that “everyone agrees” redistricting ought to be done fairly. But he added that gerrymandering to help the minority party is still gerrymandering, and the value of Prop 4 will depend in part on who is appointed to the commission and how they perform their duties.
“Other than maybe some minor tweaks to it,” Herbert said, “I think it will stand on its own merit.”