More than a year after rejecting Count My Vote’s request for its proposal to be placed on the state’s 2018 ballot, the Utah Supreme Court has explained itself in a written opinion that gives a green light to initiative opposition campaigns like Keep My Voice.
In the opinion issued Thursday and made public Friday, Utah justices found that voters who change their minds on a ballot initiative are not required to personally submit a request to have their signature removed, and that the different requirements for initiative sponsors and opponents do not violate the constitutional right to equal protection.
But the court’s ruling also leaves the door open for future, similar challenges of the state’s initiative laws. The ruling against Count My Vote last August was expedited because of the upcoming election deadline then, and the justices say that a more traditional route through the lower courts may have produced a different outcome.
“Our disposition of this matter is based on the procedural posture of the case that is before us — the fact this comes to us in a compressed timeframe on a petition of extraordinary writ,” said the majority opinion by Associate Chief Justice Thomas Lee. "And we note that our decision could conceivably be different if a case like this came to us on a more completely developed record.”
Last year, Count My Vote ran an initiative campaign aimed at amending and ratifying SB54, a controversial 2014 law allowing election candidates to qualify for their party’s primary by collecting signatures or by earning the support of delegates at convention.
After Count My Vote’s signature collection drive was completed and petitions submitted to the state, an opposition group, Keep My Voice, targeted supporters and succeeded at persuading enough voters to remove their signatures that Count My Vote was disqualified from the ballot.
Count My Vote sued, alleging that state law does not allow for the removal of signatures through an intermediary and challenging the broader initiative law on constitutional grounds.
But a majority of the court rejected those arguments, finding that while state law prohibits a voter from removing his or her signature by email, it does not restrict a voter from conveying a removal request through a third party.
“A letter carrier is a third party," the ruling said, "and we see no non-arbitrary basis for distinguishing the services of a letter carrier from that of an organization like Keep My Voice.”
The ruling also states that while Count My Vote and Keep My Voice were subject to different legal requirements, they were not “similarly situated” in a manner that raises constitutional questions.
“They do not wish to alter Utah law, but to maintain the status quo," the ruling said, referring to initiative opponents. “And they are simply responding to a topic already introduced into the public sphere by the sponsors.”
But in her dissenting opinion, Justice Paige Petersen wrote that the disparate treatment of Count My Vote and Keep My Voice does violate constitutional protections. In particular, she questioned the provision in state law that grants initiative opponents an extra month to remove signatures after initiative sponsors submit their petitions.
“During this time, CMV could only watch and wait,” Petersen wrote.
Lawmakers approved a series of amendments to Utah’s initiative law in 2019. Among those changes is a new rolling deadline to both submit and withdraw signatures before a determination is made on whether an initiative has qualified for the ballot.
Taylor Morgan, executive director of Count My Vote, said Friday that while the ruling does not change the outcome of the 2018 election, it raises interesting questions about the state’s initiative laws.
He also emphasized that the ruling does not impede the primary election process established in SB54.
“The SB54 dual path in Utah’s primary elections is still the law,” he said. “And Count My Vote is committed to preserving that and supporting it.”
In a prepared statement, Keep My Voice executive director Phil Wright said the Supreme Court had ruled appropriately.
“It’s time for the Legislature and the governor to recognize political parties’ constitutional rights of association and repeal SB54,” Wright said.