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BALLOT INITIATIVE CLEARLY UNCONSTITUTIONAL

Initiative A on November's ballot would limit, by statute, the length of time one may serve in the U.S. Senate to two consecutive terms and in the U.S. House to four consecutive terms. Persons elected to the Utah Legislature would be limited to two consecutive terms in the Utah Senate and four consecutive terms in the Utah House.

The initiative reflects popular frustration with the advantages of incumbency; advantages largely attributable to the campaign fundraising power of incumbents, enabling them to out-spend newcomers by a large margin in most elections.The remedy is to regulate campaign donations and the expense of modern campaigns, not to deprive the public of the right to vote for those they think will represent them best despite the number of terms they have held office.

Laws limiting the number of consecutive terms an officeholder may have are not only the wrong remedy for a significant problem, but they are also subject to serious constitutional question.

Term limits on congressional offices run afoul of Article I, Sections 1 and 3 of the U.S. Constitution defining the qualifications for election to the U.S. Senate and House.

Those sections define such qualifications only in terms of age, citizenship and residency, with no mention made of an additional requirement of whether the person has held the office for a specific number of consecutive terms.

Moreover, Article I, Section 5 of the U.S. Constitution, provides: "Each House shall be the Judge of the Elections, Returns and Qualifications of its own Members . . ."

No authority is vested in any state to add unilaterally to these qualifications.

This is why a federal court in another state has held that a term-limitation law for elections to the House and Senate violates the U.S. Constitution. And, the Supreme Court has held that the qualifications to run for federal office have been fixed by the Constitution and cannot be added to by statute.

The proposal Utah voters are asked to vote on this fall is not only the wrong remedy for a serious problem, it is an unconstitutional one as well.

The ballot initiative's limitation on the number of consecutive terms one may hold office in the Utah Senate and House is also subject to serious question under the Utah Constitution.

Article VI, Section 5 of the Utah Constitution provides that persons running for the Utah Senate and House shall be citizens of the United States, 25 years of age, a qualified voter in the district from which they are elected, a resident of the state for three years and a resident of the district from which they run for six months.

Like the federal Constitution, the Utah Constitution makes each house of the Legislature the judge of the "qualifications" of its members.

No authority can be found in the Utah Constitution to change the qualifications for office by statute or initiative. Doing so would not only violate the Utah Constitution but would also interfere with each voter's right of "suffrage" guaranteed by Article I, Section 17 and the language of Article I, Section 26 of the Utah Constitution making the "provisions of this Constitution . . . mandatory and prohibitory."

There is a further question with the initiative's proposal that a second general election be held where no candidate receives a majority of the vote. Article IV, Section 9 of the Utah Constitution states that "general elections . . . shall be held on the Tuesday next following the first Monday in November . . ."

The initiative provides that a "runoff" election be held where no candidate receives a majority of the vote in the general election on "the first Tuesday after the fourth Monday of November."

Article IV, Section 9 provides that "special elections may be held as provided by law." Utah statutes declare that the election of representatives to both federal and state legislative and other offices is what is meant by a "general election."

A "special election" is understood to be one held for filling a vacancy in office caused by the death, resignation or ouster of an elected legislator or for bond and other special financing matters.

What is meant by "general election" and "special election" is clear: Election to public offices like those in the federal and the state legislature can only take place at the one election constitutionally and statutorily defined as the "general election" and cannot be split off into a separate "runoff election" without violating the mandate of the Utah Constitution.

The constitutionality of that part of the initiative mandating a "runoff" election should be determined prior to the vote on the proposal in order to avoid a unconstitutional election taking place after the "general election."

A further problem with the initiative's requirement for "runoff" elections is the section applying the runoff to this November's election.

Existing law governing the effective dates of initiatives provides that an initiative approved by voters does not take effect for at least five days after the date of the proclamation of the vote on the initiative.

How one can apply a law adopted by initiative to elections to public office taking place at the same election as the vote on the initiative is a puzzle we do not believe survives statutory or practical analysis.

We believe that these constitutional and practical issues should be resolved before the November election and before the confusion of any attempted "runoff" election happens.

While we share some of the concerns of the proponents of the initiative with the power of incumbency, we believe campaign finance reform is the remedy required, not an unconstitutional statute aimed at limiting the right of qualified candidates to run.

Campaign finance reform is not only essential if we expect to restore the badly damaged public confidence in the integrity of our elected representatives, but it is also essential to equalize the contest between incumbents and newcomers who oppose them for elected office.

Limiting the right of citizens to run for office and the right of voters to vote for those they believe can best represent them will only enhance the influence of special interests while infringing upon important constitutional rights of both voters and candidates.

Using the route of an initiative, particularly one that seeks to be applied to a race for office taking place in the same election at which the initiative is voted on, suggests political opportunism is overriding careful attention to constitutional mandates and practical problems with implementing the policy.