State lawyers ask Utah Supreme Court to step in after judge declines to dismiss gerrymandering lawsuit

Utah Third District Judge Dianna Gibson also ruled the Legislature did not act improperly when it changed voter-approved anti-gerrymandering law.

(Francisco Kjolseth | The Salt Lake Tribune) The independent redistricting commission presents their map proposals to the Legislature at the Capitol on Monday Nov. 1, 2021.

Lawyers for the state are asking the Utah Supreme Court to intervene after a Utah district court declined to dismiss a lawsuit alleging new congressional maps drawn by the Utah Legislature last year are an illegal gerrymander.

In March, a coalition that includes the League of Women Voters of Utah, Mormon Women for Ethical Government and several individual voters filed suit alleging the congressional boundaries adopted by the Utah Legislature last year violated the Utah Constitution.

Last week, Third District Judge Dianna Gibson denied a request from lawyers for the state to throw out the lawsuit entirely but did rule the Legislature did not act improperly when they altered the voter-approved ballot initiative establishing an independent redistricting commission.

Plaintiffs argued the congressional boundaries violated several parts of the Utah Constitution. In her ruling, Gibson said the arguments presented in the lawsuit were substantive enough to let the case proceed.

Throughout her Nov. 22 ruling, Gibson chided lawyers for the state for not supporting their arguments for dismissal.

For instance, the lawsuit contends the maps violate the Utah Constitution’s Free Speech and Association Clause of the Utah Constitution by splitting up counties, cities and communities of interest among the four congressional districts, effectively diluting their political power and locking in Republican control for the next decade.

In response, the state said the framers of the Utah Constitution “envisioned a limited freedom of speech” and cited a 2006 Utah Supreme Court case that upheld a South Salt Lake ordinance prohibiting nude dancing at sexually oriented businesses. The American Bush topless club sued, claiming the law violated the Utah Constitution, but the Utah Supreme Court disagreed. The U.S. Supreme Court later refused to take up the case.

Gibson scolded the plaintiffs for arguing a case about obscenity was pertinent to the current argument.

“American Bush did not involve redistricting, allegations of gerrymandering or voting rights. Unlike obscenity, voting is a fundamental right, and its exercise is a form of protected speech,” Gibson wrote.

In 2018, Utah voters narrowly approved Proposition 4, establishing an independent commission to redraw Utah’s political boundaries during the once-a-decade redistricting process. In 2020, Utah lawmakers rewrote the law, shifting the commission to an advisory role.

The plaintiffs alleged the changes enacted by the Legislature amounted to an unconstitutional repeal of the ballot initiative. Gibson dismissed that claim, ruling that the Legislature has the right to alter any voter-approved law.

Katie Wright, executive director of Better Boundaries, the group that backed Prop. 4, said she was encouraged by the judge’s ruling.

“The court issued a well-reasoned opinion that will allow claims against the Legislature’s extreme gerrymander, which defied the will of voters, to move forward. Better Boundaries is committed to making sure Utahns’ constitutional right to reform their government is protected, and this is another positive step towards ensuring Utahns pick their politicians, not the other way around,” Wright said.

Gibson’s ruling may not be the last word, though. Last week the state asked the Utah Supreme Court to intervene and decide the case, a move that Wright condemned as a delay tactic.

The U.S. Supreme Court is set to rule on a redistricting case from North Carolina that could significantly impact the Utah lawsuit. The case, Moore v. Harper, argues the elections clause in the U.S. Constitution gives state legislators nearly total authority over how federal elections are conducted and are not subject to oversight by state courts or limited by state constitutions. That argument, known as the “independent state legislature” theory, would also apply to redistricting.

Lawyers for the state previously asked Gibson to pause the lawsuit until the Supreme Court ruled on Moore v. Harper, suggesting that outcome could render the case moot. Gibson declined that request in August.