Legislature’s power to gerrymander took a beating before the Utah Supreme Court, Robert Gehrke says

The justices didn’t seem to buy the state’s arguments and hinted they might protect future ballot measures from legislative mischief.

“All political power is inherent in the people; and all free governments are founded on their authority for their equal protection and benefit, and they have the right to alter or reform their government as the public welfare may require.”

Utah Constitution, Article II, Section 2

That’s always been my favorite part of the state Constitution, and on Tuesday, it played a starring role in the arguments at Utah Supreme Court over the state’s gerrymandered maps.

And while it’s always risky to try to get a read on the justices, it’s hard to see how the day could have gone much worse for the Legislature and its attorneys.

The justices seemed to not buy the state’s main argument — that redistricting is solely a legislative prerogative and the only time the courts can weigh in is when there is a population imbalance or the districts are racially discriminatory.

Justice Paige Petersen saw through that argument like Saran Wrap.

If a map is drawn so that one district has too many people and another too few, it’s an issue of vote dilution — the vote of a Utahn in one district is diminished compared to the votes in another district.

In this case, she pointed out, the plaintiffs are arguing that the Legislature has been able to use computers and data analysis to “slice and dice” communities and dilute the weight of a group of voters — in this case the more liberal Salt Lake County voting bloc — in comparison to others.

How, she asked, is the underlying rationale not the same?

Taylor Meehan, the attorney for the Legislature, argued that unaffiliated voters and split-ticket voters make gauging partisan tendencies in a district hard (although it’s not really and is done all the time) and partisan considerations are allowed to be part of the process.

But why, asked Justice Diana Hagen. Maps can be drawn without partisan considerations.

They can be — and they have been.

Utah’s Independent Redistricting Commission had software draw 100,000 maps based on the standard redistricting criteria and free of partisan considerations. In 99.5% of them, there would be at least one competitive congressional district — meaning it would have been almost impossible for the Legislature to draw four ultrasafe seats unless they intentionally set out to do so.

(Francisco Kjolseth | The Salt Lake Tribune) Robert Gehrke.

But then things got even worse for the Legislature — and created a moment that could offer the potential for real reform beyond redistricting. The justices seemed most interested in exploring whether the Legislature even had the authority to rewrite and gut Proposition 4, the 2018 ballot initiative that created the Independent Redistricting Commission.

Plaintiffs had raised that issue early on, but a trial court judge ruled against them, convinced that the Legislature can revise ballot initiatives. The justices, leaning on Article II, Section 2 — the “power inherent to the people” provision — seemed less convinced.

The public’s fundamental constitutional right to legislate through initiative becomes meaningless if the Legislature can ignore the will of the people and repeal the language of the ballot initiative. The public could run another initiative or referendum in the following election, but that could just be undone, too.

“Part of the problem is the Legislature always holds the trump card here,” said Justice Matthew Durrant. “That could continue indefinitely.”

“That ping-ponging back and forth is just part of democracy,” Meehan said. If voters want to change their government, she said, they can lobby their lawmakers to make the change, run a ballot initiative or vote their legislators out if they don’t like the results.

Justice John Pearce suggested an intriguing alternative: Perhaps courts should apply a higher level of scrutiny for changes to ballot initiatives that fundamentally “alter or reform their government,” and the Legislature should not be able to repeal or significantly rewrite those without a compelling reason.

Mark Gaber, the attorney for the plaintiffs, agreed, saying that giving the Legislature the authority to revoke an initiative makes the entire process meaningless.

Durrant fretted that it could make initiatives “super laws,” untouchable by the Legislature. But that’s not really the case. They would just need to articulate a very good explanation for their tinkering.

Pearce’s proposed standard of scrutiny raises the intriguing possibility that the justices could put Prop 4 back in place, or at least send it back to a district court with some guidance on how to reconsider whether the Legislature trampled on the power inherent in the people.

Beyond that, consider the impact on future ballot initiatives, like one I wrote about recently to open up Utah’s primary election system or Count My Vote’s failed attempt in 2018 to make it easier to get on the ballot via signature-gathering.

Those types of structural governmental reforms would have a higher level of protection against legislative mischief, and so would the will of the people.

As far as the redistricting case, it would send the current maps to the trash can since they didn’t follow the voter-approved process and standards of fairness established in Proposition 4 — a huge win for the plaintiffs and voters.

Even if the justices don’t go that far, it seems certain they’ll reject the state’s argument that the courts don’t have a role in the dispute.

That will give the plaintiffs the chance to show the true goal of lawmakers’ redistricting charade — consolidating partisan power and depriving hundreds of thousands of voters the “equal protection and benefit” of a free government.