November 29, 2023

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Lawyers for the Utah Legislature employ an endless circular argument in defending gerrymandered districts. | News


Ping-pong politics—that’s the game the Utah Legislature wants voters to play if they’re ever unhappy with their elected lawmakers and what they’re doing at the Capitol.

The League of Women Voters of Utah (LWV), Mormon Women for Ethical Government (MWEG) and several individual plaintiffs have sued the Legislature over its gerrymandered congressional maps. The case is now before the Utah Supreme Court, but no matter how the court rules, Utah’s voters should understand the Legislature’s reasoning.

In a nutshell, the Legislature and the League et al are presenting two competing constitutional arguments. The plaintiffs point to Utah’s Article I, section 2, which states that all political power is inherent in the people. “All free governments are founded on their authority for their equal protection and benefit,” the section states, “and they have the right to alter or reform their government as the public welfare may require.”

But the state’s lawyers point to Article IX, section 1, which explicitly grants redistricting authority to the state Legislature, arguing that it is the elected representatives—and not the voters who elect them—who have the sole power to establish district maps.

The U.S. Supreme Court recently ruled against the fringe “independent state legislature” theory that purports to give state legislatures fully unrestricted powers to administer federal elections as they see fit, including the drawing of congressional boundaries. Because the U.S. high court previously said that federal courts couldn’t rule on partisan gerrymandering, that theory would have left both state courts and state constitutions powerless.

In a July hearing of the Utah Supreme Court, the Legislature—through its counsel Taylor Meehan—argued that citizens have the right to change or make law if they go through some kind of never-ending legal loop. Here’s how they claim that would work.

If citizens pass an initiative, the Legislature can “amend” it, because that’s what they do. If citizens don’t like the changes, they can lobby their legislators to change their minds, or they can run another initiative—which again, the Legislature could override. They could also try to amend the state’s Constitution. But wait—constitutional amendments must start with the Legislature.

“If the public wants fair boundaries, they have a remedy to lobby the Legislature through the normal process or through Congress,” Meehan told justices on the state court. “They can lobby for a constitutional amendment, lobby their Legislature or go through a statutory change through initiative.”

But it takes two-thirds of each legislative chamber to vote in favor of a constitutional amendment before it goes before the voters for ratification. And with maps drawn to favor incumbents, the LWV-MWEG suit claims, the public’s right to make and change laws is essentially moot.

“Although this court has never resolved the constitutionality of an attempt by the Legislature to nullify an initiative after enactment, the same logic applies,” the LWV lawsuit states. “The people’s initiative right would be meaningless if the Legislature could, as the district court reasoned, negate an initiative-enacted law ‘without limitation.'”

Meehan, the Legislature’s attorney, had a more academic take on this never-ending loop.

“First, if a statute passed by initiative constitutes an exercise of that right ‘to alter or reform’ government, then statutes passed by the Legislature must be too,” she argued, “for ‘[t]he initiative power of the people is parallel to and coextensive with the power of the state legislature.”

Let’s unpack that. Meehan must have used the term “co-equal and concurrent” dozens of times during her argument before the Utah Supreme Court. That’s just so you, the voter, gets it. You need to link arms with the Legislature and skip happily to any law they come up with.

And Meehan made it clear that the Legislature doesn’t think highly of Proposition 4 and its voter-approved independent redistricting commission. She pointed out that the ballot measure only passed by the barest of majorities in 2018.

“Second,” Meehan argued, “the people knew that the only way they could alter or reform governmental structures prescribed by the Constitution … was through the constitutional amendment process the people chose in 1895 and left unchanged in 1900 [by opting not to allow constitutional amendment by direct initiative].”

Indeed, Meehan was focused on the past. The year 1895 was very, very important because that’s when delegates drafted the Utah Constitution. Let’s not forget how overwhelmingly popular the new Constitution was, as it passed by a popular vote of 31,305 to 7,607.

Originalists always point to the beginnings. Just for perspective, the population of Utah in 1890 was 207,905. Today, it is well over 3.3 million.

Let’s move on to 1900, another important legislative date for Utah and Meehan. The wise people of Utah (200,000-plus of them) were then asked if they wanted to amend the Constitution to add an initiative and referendum process. They said “sure,” but they didn’t leave it completely up to the people.

Meehan points out that while the people agreed on a citizen initiative process, they didn’t intend it to be used for redistricting. Well, we really don’t know what was going on in the minds of voters back then, but they might not have wanted to be bothered. With a little over 200,000 people, voters probably knew their representatives personally—or through church—and could slap them sideways if they didn’t like what they did.

Congress mandated in 1842 that districts would be used to elect our federal representatives. But Congress never told us how those districts should be drawn, except that they be based on Census numbers. Let’s just say that voting has changed a lot over the years.

For instance, slaves used to be counted as three-fifths of one person. That’s no longer the case and more recently, the U.S. Supreme Court reaffirmed rulings against racial gerrymandering.

By the way, the word “gerrymandering” is hardly official. It’s a slang term coined in 1812 after Massachusetts drew a salamander-looking district to help Gov. Elbridge Gerry’s party.

And it could be argued that Utahns, in voting for Proposition 4, didn’t think it was about gerrymandering. That word was never used in the voter information packet, which stressed “independent” maps.  

“Third,” Meehan argued, “the people knew how to place limits or conditions on their ability to ‘alter or reform their government’ and in fact did so for certain aspects of their direct lawmaking power: refusing to authorize constitutional amendments by initiative; making the initiative process subject to conditions imposed by the Legislature; prohibiting referenda on laws passed by a two-thirds vote in both houses.”

At the time, Meehan argued, Utah voters did not expressly limit the Legislature’s power to amend or repeal statutes passed by citizen initiative. She also suggested that if voters didn’t like the laws passed by a two-thirds majority in both legislative chambers, they just had to suck it up.

But again, that was in 1900. Since then, the Legislature has made and will continue to make it more and more difficult to pass initiatives.

Among the many requirements, an initiative must gather signatures in at least 26 of Utah’s 29 Senate districts, and the number of signatures required is significant—a percentage of active voters following the most recent regular general election. In 2022, an initiative required 137,929 verified signatures statewide.

Meehan says no worries. If your initiative gets amended—or repealed—you can always try again (because it’s so easy and inexpensive, apparently).

Finally, Meehan stated that voters can always hold their representatives accountable by voting them out. See how that works? The Legislature has drawn districts that ensure their survival, with electoral defeat seemingly the only clear remedy for disaffected voters, a dynamic that was noted by members of the court.

“Part of the problem is the Legislature always holds the trump card here,” Chief Justice Matthew Durrant said. “You argue the referendum process is available. That could continue indefinitely.”

And for now, it will.

Editor’s note: City Weekly writer Katharine Biele is president of the League of Women Voters of Utah, one of the parties suing the state of Utah over its congressional district maps. Her thoughts here are hers alone and in no way reflect those of the League or its legal council.