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'Hot bench' questions Count My Vote, state lawyers over ballot initiatives

FILE - Dr. Christian Neff speaks during the Count My Vote press conference on the south steps of the capitol on Wednesday, Sept. 18, 2013.
FILE - Dr. Christian Neff speaks during the Count My Vote press conference on the south steps of the capitol on Wednesday, Sept. 18, 2013.
Matt Gade, Deseret News

SALT LAKE CITY — Count My Vote made its case before the Utah Supreme Court for getting on the November election ballot Wednesday after being disqualified because nearly 3,000 residents removed their names from its initiative petitions.

The justices peppered lawyers for the group seeking a change in the law and the state defending Utah's initiative petition process with questions during a nearly two-hour hearing in what Attorney General Sean Reyes afterward called a "hot bench."

Much of the arguments centered on a person's right to sign and remove their signature from a ballot initiative petition. Justices also honed in on the 30-day period during which signers can remove their names after the petition is submitted to the state elections office for verification.

"To me, it comes down to my right to control my vote," Chief Justice Matthew Durrant said at one point.

Justice Paige Petersen disagreed that it's about individual rights. She said the law makes it much easier to "knock down" an initiative petition than to get one on the ballot.

"We don’t give voters a window to think about their vote and go in and change their vote," she said.

Utah Solicitor General Tyler Green defended the 30-day period, noting those supporting an initiative have more than eight months to collect signatures. He said the law gives time for the state elections office to verify the signatures and people an opportunity to see if their names were fraudulently added to the petition.

Count My Vote attorney Matt Cannon argued the ability for people to take their names off the petition amounts to "veto power" over the entire initiative. The right to sign a petition and the right to remove a signature are not equal, he said.

Just over 113,000 voters statewide must sign an initiative, and the threshold must be met in at least 26 of the 29 districts. Count My Vote says it submitted more than 131,000 validated signatures.

Nearly 3,000 people had their names removed from the initiative, intended to maintain the current candidate nomination process that offers an alternative to the traditional political party caucus and convention system to get on the primary election ballot.

As a result, the initiative fell short of the required signatures in three state Senate districts where the required threshold had been exceeded, according to the lieutenant governor's office, which oversees elections.

Keep My Voice, a group that had initially intended to circulate a counterinitiative doing away with the 2014 legislative compromise known as SB54 that created the dual path to the primary ballot, targeted petition signers in specific Senate districts.

Backers of the initiative for the dual track asked the Utah Supreme Court to throw out the provision in the law allowing for voter signatures to be removed. The group contends if the provision is either declared unconstitutional or determined not to have been followed correctly, the Count My Vote initiative should be on the November ballot.

The court took the issue under advisement but is expected to rule before the state elections office certifies the ballot on Aug. 31.

Count My Vote argues that the signature removal process "stacks the deck" in favor of an initiative's opponents. Petitions turned into the state include signers' addresses and contact information.

Former Utah Gov. Mike Leavitt, co-executive chairman of Count My Vote, said after the hearing that the law gives opponents a "treasure map" to find and persuade people to remove their names.

"The question that was addressed today is whether the system is lopsided. I believe it is. I think it needs to be changed," he said.

Leavitt said Utahns like the dual track nomination process and want a chance to vote on keeping it place.

Phill Wright, a Utah Republican Party Central Committee member and Count My Vote opponent, said after the hearing that the ability for people to remove their names from a petition is not only fair it's the law.

At stake, he said, is the "right of an individual to determine if they're going to vote for something or if they become more educated in the end and say, 'That's not really what I wanted,' the right to remove their vote."

The "relative ease" by which an opposition group can remove signatures, especially considering the difficulty of obtaining valid signatures, "imposes an undue burden on the people's constitutional right to initiative legislation," the petition states.

The law does not tip the scale toward initiative foes who urge signers to have their names erased, Green argued in court filings. As evidence, he said, three of four initiatives in Utah, including a medical marijuana question that faced a similar signature-removal push, won enough support to make the November ballot.

Green argued in court documents that "the state obviously shares (Count My Vote's) desire that elections and initiatives be fair … but that also includes fairness for initiative signers" who retain the right to withdraw their names before a state-imposed deadline.

If the court were to find the law unconstitutional or strike sections that Count My Vote argues are unfair, it would throw the state elections office into chaos as it tries to come up with new rules ahead of the Aug. 31 deadline to certify ballots, Green said.