Merrill Cook knows a little bit about mudslinging; as a former congressman turned talk-show host, he’s witnessed his fair share. So he knew whereof he spoke recently when he opened Politics Unpeeled, his K-Talk radio show, with some good old-fashioned invective. The object of his ire: Sen. John Hickman, (R-St. George), who sponsored a new law, which takes effect Monday, that makes it harder to qualify citizen initiatives for the ballot. Cook didn’t pull any punches, though he was frequently interrupted by fiber jingles, Bob’s traffic report and a commercial for Fair Warning firearm instruction. He might as well have smashed a pie in Hickman’s face.
“He’s just a butthead,” said Cook of the good senator.
Hickman’s Senate Bill 28 radically rewrote the rules governing citizen intiatives. While some senators tout the fairness of the law on the theory that it promotes greater geographic representation, initiative seekers disagree vehemently, saying they’ve had it with the Legislature’s hindering of what they consider a fundamental right. And Cook, a Wonder Bread white Mormon Republican who owns an explosives-manufacturing firm, is living proof that the citizens’ initiative process is not a partisan issue.
Twelve groups have filed applications for initiatives this year. All are trying to find ways to avoid having to jump through the new legislative hoops created by SB 28. For those whose petitions are approved for circulation prior to the new law taking effect May 5, a different set of rules will apply. Petition signature gatherers will not be required to meet the new law’s stipulations for public hearings and notifications. However, because the petitions will be turned in after May 5, new signature requirements will apply.
One group—Safe Havens for Learning—is going a step further by planning a pre-emptive strike. About the time this story goes to press, the group says it will be filing a lawsuit against the Leavitt administration for trampling on state and federal constitutional rights.
Almost a century ago, Ogden’s “lone populist” Sherman Smith led a movement to amend Utah’s constitution to allow for the possibility of direct democracy—or citizens’ initiatives. He was successful in amending the constitution, but the Legislature failed to pass an implementing bill. It wasn’t until 1916 that a group called the Popular Government League of Utah lobbied for a law that would enable citizens to put initiatives on the ballot. Eventually, the Legislature passed the bill. But among other constraints was the near-debilitating requirement that signers visit a state office and append their John Hancocks in the presence of an officer. In short: the law prohibited the circulation of petitions.
After World War II, legislators eased restrictions on the process. Since 1952, Utahns have voted on 18 initiatives but passed only four.
In 1960, voters passed a law to establish a merit system for deputy sheriffs. Sixteen years later, Utahns outlawed “compulsory fluoridation.” And three years ago, people voted into law two initiatives: one that declared English to be the official language of government, and Utah’s “forfeiture of assets” law, which established procedures for forfeiture of property in criminal cases.
Some of Utah’s early losers include laws that would have legalized horse racing, cleaned up cable TV (called the Cable TV Decency Act) and done away with sales tax on food.
In 1998, legislators changed the initiative process, ostensibly to require broad geographic balance in signature gathering. Sponsors seeking to put an initiative on the ballot had to get signatures that represented 10 percent of all votes cast for governor in the last election. The signatures had to come from 20 of Utah’s 29 counties (the previous law required 15 counties) and represent 10 percent of the votes cast for governor in each county. The law went unchallenged until last year’s proposed Radioactive Waste Restrictions Act opened a can of legislative whoop-ass.
The sponsors of Initiative 1 gathered more than 130,000 signatures and submitted them to Lt. Gov. Olene Walker. Because Utah law allows one month for signers of a petition to renege, opponents of the initiative contacted signers in sparsely populated rural counties to ask that they remove their names from the petition. Almost 3,000 signers did so, causing the petition to fall short of the 20-county requirement. While the petition still exceeded 10 percent of all votes cast for governor, Lt. Gov. Walker declared it legally insufficient. The sponsors took Walker to court.
The result was Gallivan v. Walker, in which the state Supreme Court spanked the Legislature. The court recognized that the process gave sparsely populated counties what amounted to a veto over densely populated counties. Opponents of an initiative could target the weakest counties—such as those with the fewest signatures, or perhaps those considered marginally supportive of the initiative—and kill an initiative by convincing a small fraction of petition signers to remove their names.
The court ruled last August that this amounted to a violation of the uniform operation of laws provision of the Utah Constitution and the 14th Amendment of the U.S. Constitution, a portion of which is known as the “equal protection” clause. The foundation of equal protection is the doctrine of “one man, one vote,” which guarantees that all votes have equal weight. The court ruled that the law had essentially disenfranchised voters in more populous counties. The Legislature got a “time out,” so to speak, and was charged by the court with writing a new law that would “facilitate the initiative right.”
So when legislators, who have never been fans of citizen initiatives—and who had particularly resented Initiative 1—met on the Hill this winter, they had a bone to pick.
SB 28 passed handily in the Senate, then squeaked through the House by three votes. Gov. Mike Leavitt signed the bill into law, even though some believe the new law makes it even more difficult to get an initiative on the ballot.
According to gubernatorial spokesperson Natalie Gochnour, the governor was left with no choice. Gallivan v. Walker left the state with no implementing law on the books.
“He was presented with one alternative,” said Gochnour. “It was not perfect [nor was] the one he would have designed, but it passed through both bodies of the Legislature and he felt comfortable signing it.”
The new law substitutes a Senate-district requirement for the old county requirement because, unlike counties, Senate districts are roughly equal in population. As with the old law, sponsors must gather signatures amounting to 10 percent of the total number of votes statewide for governor during the last election—in the present circumstances, that total is 76,180. Signatures have to be gathered in 26 of the state’s 29 Senate districts, and the number of signatures gathered within each district must be at least 10 percent of the votes for governor in that district. In addition, a hearing must be held in each of seven state regions, which are spelled out in the law. Sponsors must contact in writing all elected officials within the region to notify them of the hearings, as well as pay for newspaper ads in the seven regions to notify the public. If petitioners fail to get the initiative on the ballot, they are no longer permitted to carry over signatures to the next election, as they were under the old law, but have to re-file and start over. Finally, an “identical or substantially similar” petition cannot be submitted for two years from the date that the like petition was submitted.
The question on everyone’s lips now is whether the new law will withstand a court’s exacting gaze.
Attorney Lisa Watts Baskin remembers a childhood trip to Capitol Hill.
“My recollection back then was, ‘This is so cool,’” she says. “I had a great deal of respect and a sense of allegiance.”
After working for seven years with the Legislature, in part as an attorney with the Office of Legislative Research and later as the executive director of the Utah Constitutional Revision Commission, Baskin changed her mind. “Now I see how compromised they [legislators] all are,” she says. “They should do good and represent [their constituents], not go to Jazz games and act elite and above everyone.”
Baskin and fellow attorney John Pearce are filing a lawsuit to challenge five requirements of the new law: the requirements that signatures be gathered in 26 Senate districts and that seven hearings be held; the signature-removal provision; the inability of sponsors to carry over signatures to the next election in the event an initiative petition is disqualified; and the provision that prohibits filing the same or a similar initiative for two years.
Pearce and Baskin are looking to repeat the results from the successful Gallivan v. Walker case. As with the previous law, they contend that these sections put “undue burden” on the initiative right and violate the equal protection clause of the 14th Amendment, the First Amendment, due process and Utah Constitution’s uniform operation of laws, which protects “laws that impact or burden fundamental rights.” And no right is more fundamental than voting, Pearce argues.
“Under the Utah Constitution, there’s a right to create law by constitution and a law to express oneself freely,” Pearce says. “Laws that impact fundamental rights like that are unconstitutional unless [they are] reasonably necessary to further a legislative purpose. ... These restrictions were put in place solely for the purpose of making it harder to put initiatives on the ballot, and that’s not a legitimate legislative purpose.”
Pearce is echoing Gallivan v. Walker, which shot down all the Legislature justifications for imposing the 20-county requirement as not being, in the words of the court majority, “legitimate legislative purpose[s].” Some of the state’s justifications, as spelled out in court documents, included: “maintaining the integrity of the process”; ensuring that “initiatives are not so easy to get on the ballot”; “promoting initiatives as grassroots legislation with geographical and popular support”; countering “localized legislation”; “acting as a check and balance”; “safeguard minority interests”; and advocating an “informed electorate.”
Sen. Hickman disagrees. Instead of placing undue burden on the initiative right, he says the new law supports the Supreme Court’s decision in Gallivan v. Walker.
“The new initiative legislation addresses one man, one vote by requiring that 26 of 29 Senate districts would have to sign petitions representing 10 percent of the last gubernatorial race,” Hickman says. “By using Senate districts based on population, that solved the problem.”
With regards to additional requirements for hearings and notification, he says he hopes that it doesn’t make it more difficult. He sees the requirements as necessary to inform the public. “The [Utah] constitution says that the initiative process is a right,” says Hickman. “But it also says that the Legislature shall draft the laws governing the process. We desire to make the public as fully informed as they can be.”
Baskin and Pearce wouldn’t discuss the identity of their client before filing suit, but attorney Carol Lear says she, along with the Safe Havens for Learning Coalition, are behind the lawsuit. Lear is the coordinator for school law and legislation for the state Office of Education. In addition to challenging the new initiative law, Safe Havens’ main purpose, according to Lear, is the circulation of an initiative petition that would, in some cases, prohibit concealed-weapons-permit carriers from bringing guns into schools.
The effort is in response to another new law. The same day that SB28 takes effect, a new gun law will allow concealed-weapon-permit carriers to go almost anywhere they want—even public schools. Guns will still be prohibited in airports, churches and some government “secured areas,” like courts.
Safe Havens consists of the state Office of Education, as represented by Lear; the Episcopal Diocese; the Gun Violence Prevention Center; the Utah Parent Teacher Association; the Utah Nurses Association; Sen. Karen Hale (D-Salt Lake); former state Rep. Dave Jones; Paula Plant, a concerned citizen; and the Utah League of Women Voters.
Safe Havens tried to get a similar initiative banning guns on school grounds and in churches on the ballot last year, but even PTA volunteers couldn’t gather enough signatures. This time, they’re paying for petition circulators.
The Safe Havens for Learning initiative would prohibit unauthorized concealed-weapon-permit holders from packing on school property and private property. Violations would be class A or B misdemeanors, or a felony, depending on the weapon.
The petition includes some flexibility, says Lear. Law enforcement, federal marshals and judges are exempt. The initiative includes a “transitory clause” that allows a concealed-weapon-permit holder who is either picking up or dropping off a child to carry a weapon. The school principal can grant approval for some types of weapons. And one provision states that as long as a weapon is secure, out of sight and inaccessible to a minor or student, an adult could leave a gun in someone’s car on school property.
“It’s not like an absolute ban,” Lear says. “We still have the law that students can’t have guns. This is about adults coming onto school property with guns.”
“Not only can people carry guns onto campus,” Lear says, “but there’s a provision in the law that says you can’t know who is carrying. My child’s first grade teacher or soccer coach could have a gun, and I don’t have any right to know.”
Lear won’t discuss details of the lawsuit against the new initiative law until it is filed. But she’s behind it because she wants to get her gun initiative on the ballot. “Our main issue is guns,” she says. “We’re really not just being activists about this initiative law. Everyone we talked to said because of this initiative law, we can’t get your gun petition on the ballot. That’s why we’re involved at all in challenging the initiative law.
“We’d rather go back to the Legislature. We’d love it if some legislator came to his senses and said, ‘Oh my gosh, what have we done?’ But it doesn’t have a prayer.”
What would happen if the court strikes down one portion of the law but keeps others? Hickman says that legislators built a severability clause into the law, so that if a court rules one part of the law unconstitutional, the Legisla-ture could remove that part and leave the remainder of the law unaffected.
Pearce calls it an inseverability clause in disguise. Pearce explains that the law disallows serverability in one case: The 26-of-29 Senate-district rule and the 10 percent signature rule are tied to one another.
“The main source of the challenge will be the 26 of 29 Senate-district requirement,” says Pearce. “That’s an impermissible burden on the right to create law by initiative. If the court strikes down the 26 of 29, it also strikes down the 10 percent requirement. The Legislature wanted to make sure if someone challenged the 26 of 29 Senate-district requirement, there would not be a mechanism to get something on the ballot.”
In other words, Pearce explains, it is possible that if a court declares the law unconstitutional on the grounds that the Senate-district requirement places “undue burden” on the process—which is the bulk of the challenge—then no initiatives will get on the ballot until the Legislature re-writes the law.
But according to attorney Tom Roberts, it’s also possible that if a court declares the law unconstitutional, the severability clause could enable a court to take out the signature requirement altogether. If that happened, initiatives approved by the lieutenant governor could easily qualify for the ballot simply by meeting whatever provisions of the law that were not struck down.
Roberts, who works for the attorney general’s office and represented Lt. Gov. Walker in Gallivan v. Walker, says there’s a third possibility: The Utah Supreme Court could rule that the linking of the Senate district and 10 percent rules “overly burdens the process,” and sever them anyway—despite the law’s provision binding them together. If that happened, petitioners would still have to gather 10 percent of all the votes cast for governor, but without geographic limitations.
Pearce and Baskin hope for two things: They are asking the court for a declaratory judgment by this June, after which Gov. Leavitt would put initiative reform on a topics list for a planned special legislative session that same month.
“There’s no guarantee that we would have a court ruling by that time,” Pearce says. “There’s no guarantee that a court would declare it unconstitutional. And there’s no guarantee that the governor would put this on the topics to be addressed.
“The risk we run is that if we get it struck down, and the Legislature doesn’t take it up until next session, the new law wouldn’t take effect until April or May of next year, and you only have until June  to collect signatures. There would be a very short window to collect signatures [under a new law].”
Call a dog a dog, says activist and legislative watchdog Claire Geddes. She would rather see the Legislature get rid of initiatives than make it impossible to put them on the ballot. Geddes says she’d have more respect for legislators if they would just “be clear and change the constitution instead of setting up roadblocks because they are frustrated that they didn’t like the outcome [in Gallivan v. Walker].”
If Sen. Thomas Hatch, R-Panguitch, had his way, that might have been the case. “We should have gone further,” Hatch says. “Every area of the state should have a say. We shouldn’t disenfranchise anyone.”
Hatch wanted the signature requirement to include all 29 Senate districts. “People certainly have that fundamental right, and we shouldn’t take it away from them,” he says. “But how easy should we make it?”
Sen. Mike Dmitrich, D-Price, agrees: “From the onset it [the initiative process] was unfair to rural Utah to allow the masses on the Wasatch Front to control initiatives,” he says. Dmitrich is referring to the tendency for petitioners to gather the majority of signatures in Weber, Davis, Salt Lake and Utah counties, where three-fourths of the state’s population resides.
“If there’s something that should definitely be on the ballot, citizens have the right,” Dmitrich says. “But there should be proper representation of the people before it gets on the ballot.” Besides, Dmitrich says, the law can differentiate between those who “really, really want to go after it [initiatives on the ballot],” and those flaky activists who might think lightly of doing so.
Most sponsors agree the process of gathering signature by Senate district is extremely difficult. They also understand that they might have to change horses midstream if the rules change again. But they’re willing to risk it.
Shaun Walker, sponsor of an initiative that would end affirmative action in Utah, says, “The whole concept of collecting signatures for Senate districts is a logistical nightmare. Either they intended to make it more difficult to make these work, or they have no idea that it will be a logistical nightmare.”
Bart Grant agrees that the Senate district requirement is unreasonable. Grant is circulating a petition that would re-impose term limits—which were repealed by the Legislature last session—on elected state officials. “For instance,” he says, “when you’re collecting signatures by county, you know what county you’re standing in. Do you know what Senate district you’re in?”
For Geddes, regulation of the initiative process signals a larger problem: “They put up a stumbling block to make it more difficult for citizens to participate. Now, you have a group of leaders that want the public trust, but they don’t trust the public. That, to me, is a dysfunctional relationship.”