A Utah judge may decide this week on whether to let voters decide on Amendment D — a change to the Utah Constitution that empowers the Legislature to repeal or amend any ballot initiative — or that the ballot language written by Republican lawmakers is deceptive to the point that it should be removed from this fall’s general election ballot.
Separately, opponents of the amendment filed another motion Saturday asking 3rd District Judge Dianna Gibson to remove the amendment from the ballot because the Legislature failed to meet a plain requirement in Utah’s Constitution that the text of the amendment be published in a newspaper statewide at least 60 days before the election. With less than 60 days now remaining before the election, lawyers argue, the requirement hasn’t been met.
The deadlines couldn’t be much tighter. Under federal law, ballots for overseas voters — military service members, diplomats and Latter-day Saint missionaries, for example — must be printed and mailed no later than Sept. 20, Assistant Attorney General Lance Sorensen told Gibson.
Between now and then, the ballots have to be proofed and printed, meaning Thursday is the “drop dead date” for getting the files to the printers, said Sorensen, who is representing the state elections office in the lawsuit.
“I think the counties have their time slots [for printing], and if they miss them, that’s anybody’s guess as to whether we could even have ballots for the rest of the election. Which, again, is not just Amendment D — it’s the presidential election all the way down,” he said. “So, I want to make sure that that’s emphasized, that whatever we do here doesn’t jeopardize our citizens’ ability to actually vote in this election.”
Gibson had planned to let the parties submit briefs on the issue until the end of the week and hear arguments on the matter on Sept. 16, but compressed that schedule significantly on Monday after hearing from lawyers on both sides of the debate.
Attorneys for the League of Women Voters, Mormon Women for Ethical Government and several individual Utahns are urging Gibson to take the constitutional amendment off the ballot, arguing that the ballot question written by Utah House Speaker Mike Schultz and Senate President Stuart Adams is so deceptive it violates constitutional guarantees of free and fair elections.
The question asks voters if they want to “strengthen the initiative process” by banning foreign involvement in ballot initiatives and “clarifying” the Legislature’s and citizens’ role.
Schultz and Adams were able to submit the language because Republican legislators changed the law earlier this year, taking the job of writing the ballot question away from the Legislature’s nonpartisan lawyers and giving it to the legislative leaders.
The lawyers for the plaintiffs argue the proposed amendment would do just the opposite, effectively eviscerating the citizen initiative process by overturning a Utah Supreme Court ruling and stating that the Legislature can overturn or significantly amend any future initiative.
The proposed amendment, hastily passed by Republican legislators during a special session last month, overturns a unanimous ruling by the Republican-appointed Utah Supreme Court that held that the Legislature violated the citizens’ initiative right when it repealed a provision in a 2018 initiative that sought to ban partisan gerrymandering — drawing political boundaries to benefit one political party to the detriment of another.
After repealing that provision, the Legislature ignored the recommendations of an independent redistricting commission also created through the initiative and adopted congressional maps that split Salt Lake County into four districts — an attempt, according to the plaintiffs, to ensure Republicans would win all four seats in Congress and Democrats would be excluded.
The League and MWEG are asking Gibson to throw out those maps and require new ones to be adopted before the 2026 election. If Utahns vote to approve the amendment in November, it would be a major setback, if not a fatal blow, to that effort, since the amendment also applies retroactively.
The second attempt to stop the amendment from appearing on the ballot stems from language in Article XXIII, Section 1 of the Utah Constitution, which states that an amendment approved by the Legislature shall have the language of the amendment published “in at least one newspaper in every county of the state, where a newspaper is published, for two months immediately preceding the next general election” when the amendment will be voted on.
“While the misleading ballot language has been shared far and wide by legislative leadership, the actual text of the amendment has been obscured, in clear violation of the Utah Constitution,” said Emma Petty Addams, co-executive director of Mormon Women for Ethical Government. “This is the latest move in a series of rushed political maneuvers that undermine Utahns’ constitutional rights.”
The publication question was only briefly referenced in Monday’s scheduling hearing.
Attorneys for the state elections office said that they could submit their arguments to the court by Wednesday morning. Mark Gaber, with the Campaign Legal Center, representing the opponents to the amendment, said they could either file a short response or counter the state’s arguments in a hearing Wednesday afternoon.
Tyler Green, an outside attorney hired by the state, argued that removing a measure from the ballot would be unprecedented. The closest comparison, he said, was a 1994 case when the impartial summary of a term limit initiative in the voter guide was challenged for being biased.
The Utah Supreme Court declined to intervene and prevent the pamphlets from being mailed to voters, although that was largely because the plaintiffs challenging the language waited nearly a month to contest the wording in the guide.
Correction: Sept. 10, 10:20 a.m. • The story has been updated to reflect the correct number of days until the election.
