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Gerrymandering Utah’s non-LDS voters into quarters virtually guarantees all-LDS representation, Robert Gehrke contends

As political groups in the state weight legal challenges to the Legislature’s new redistricting maps, Gehrke considers another strategy: grabbing Utah’s third rail.

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

Over the last few weeks, the group Better Boundaries has been sending out fundraising solicitations, dangling the intriguing possibility that they might go to court to challenge the gerrymandered redistricting maps approved by the Utah Legislature.

The group’s executive director, Katie Wright, told me last week that they have hired a law firm that is in the process of looking at what arguments could be made.

“There just isn’t much Utah case law around redistricting, period,” she said. “Until we have a team of lawyers working on it, it’s hard to say where it will go. There’s just a lot to look at to determine a path.”

Primarily, they are considering whether the Legislature violated the fair election clause of the Utah Constitution. Identical language in the Pennsylvania and North Carolina constitutions provided the basis for successful challenges in those states over the last several years.

The question of whether classes of individuals are being discriminated against in the Legislature’s maps is also being scrutinized.

Wright said she hopes the analysis will be done next month and there will be a clearer path forward. Some Democrats are also exploring legal avenues.

“We’re not going to do anything without it being very thoughtful and being very clear that there is an achievable legal path,” Wright said. “We’re not Pollyanna we know there’s not an easy legal path.”

There’s one more possible strategy that, in my mind, warrants consideration: the maps, as adopted, effectively disenfranchise voters who are not members of The Church of Jesus Christ of Latter-day Saints.

Before you scoff, consider that in 2020 roughly 40% of Utah was not LDS — belonging either to another religion or no religion at all, constituting a larger percentage of the population than Democratic voters or any racial or ethnic minority.

But by last count, 86% of the Utah Legislature belonged to the state’s predominant faith. At the federal level Utah has only elected two non-LDS U.S. House members in the last century — Karen Shepherd, who is Protestant and Elmer Leatherwood, a Methodist who died in office in 1929.

We know where the bulk of the state’s non-LDS population lives — in Salt Lake County, where a little over 53% of the population is not part of the faith. And that is precisely the part of the county that was carved into four separate pieces, splitting the non-LDS vote and all but guaranteeing that the state will continue to elect LDS representatives for the next 10 years.

Here’s why that poses a problem: As you may remember from your state history class, when Utah became a state, Congress was very wary of enabling an LDS theocracy and took steps to limit the church’s dominance in civic life.

The Utah Constitution reflects this in Article I, Section 4, with a prohibition against the establishment of religion, as well as stating that there shall be “no religious test” to hold office. Drawing boundaries that make it impossible, as a practical matter, for anyone who is not LDS to win an election is tantamount to a religious test.

Attorneys could also point to the fair election clause that was utilized in Pennsylvania and North Carolina, and argue that the disenfranchisement of non-LDS voters interferes with free and fair elections.

This is actually not a new concept, and it’s not my idea. It has been kicked around in some legal circles for years. I’m told that after redistricting 10 years ago this same legal argument was considered and abandoned for a couple reasons.

For one, the plaintiff would have to show that religious affiliation was a consideration in the map process. The splitting of the state’s main “gentile” communities might be enough, but probably not. Additional proof could be offered in the state House and Senate maps where, in the past, political boundaries were sometimes drawn along LDS ward boundaries.

Assuming that suffices, the plaintiff then has to make the case to a judge who, odds are, is a member of the faith or ultimately to the Utah Supreme Court with a majority of LDS justices — who presumably would not be inclined to the argument.

And finally, there are the optics. Even if there’s a winning legal case to be made, politically it would be a loser. Utah Democrats wouldn’t want to risk alienating 60% of the state. Likewise, Better Boundaries probably won’t venture near it. It would take someone like attorney and provocateur Brian Barnard, were he still living, to wade into the fight.

Those practical realities make it unlikely anyone will grab hold of Utah’s third rail.

But the fact remains that if you happen to be in that 40% of Utah’s population — or 53% of Salt Lake County residents — who are not members of the LDS Church, there is one more way that the Legislature’s redistricting maps have deprived you of representation.

Correction • Jan. 2, 12:32 p.m.: The story has been updated to reflect that U.S. Rep. Karen Shepherd is a Protestant.

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