Most special legislative sessions in Utah are called by the governor after conferring with the president of the Senate and the speaker of the House. But in August, the Utah Legislature called itself into a special session, which is constitutionally allowed only if they and two-thirds of the members of the House and Senate determine that the state is in an emergency situation. In this case, the stated “emergency” was a need to quickly overrule a unanimous Utah Supreme Court decision regarding the balance of power between citizen ballot initiatives and the Legislature.
Changing our constitution should be a careful and thoughtful process, but this proposed amendment (which is listed on the ballot as Amendment D) compromised important safeguards at many steps along the way.
Here are some examples of the legislative overreach I witnessed over the last few weeks:
- Utah law said that the date for changing the language on the ballot for 2024 had already passed, so it would have been illegal to put any new language on the ballot at such a late date. The Legislature was able to get around this law by passing a separate new law to change the allowable date to make it legal to add Amendment D to the 2024 ballot at the last minute.
- Laws should generally not be retroactive, but Amendment D is. The text of the amendment specifically says it is retroactive, which would nullify the Utah Supreme Court ruling regarding the redistricting case that is currently still pending in Utah District Court.
- Past constitutional amendments have had their ballot language written by nonpartisan staff attorneys with instructions to write the language in a neutral way so that the main purpose of the amendment could be easily understood. Recent changes made by the Legislature now allow legislative leadership to write the ballot language any way they wish, which includes the possibility of writing the language in a biased or misleading way that conceals the most important changes made by the amendment.
- The legislative process that happens during the normal legislative session allows constituents time to read what is being proposed, think about what is being sponsored and give feedback to their senators and representatives about legislation at several points along the way. Those safeguards were eliminated by passing this law in a special session by:
- Dropping the requirement to hear the bill in two different committee hearings (the bill was heard in a single combined interim committee a few hours before the final votes with less than 20 minutes of public comment);
- Not requiring the bill to be on a committee agenda for 24 hours before it was heard in the committee (the bill language was not public for 24 hours before the committee hearing);
- Removing the requirement that 24 hours pass after a bill is read onto the House or Senate floor before it can be voted on (the entire process, from the moment the special session started until it was all over, was just a few hours).
- However, the most important safeguard that was compromised wasn’t just the short timeframe for public feedback. The truth is that most of the decisions about how individual legislators were going to vote were made in private before the language was shown to the public at all. The leadership teams of both the House and the Senate worked with individual legislators prior to the language being made public to get their commitment on the bill. They already had commitments from the majority in the House and the Senate to vote in favor of the changes before they even announced that they were calling a special session.
Denying the public a chance to know what changes a law is going to make before legislators are asked to commit to how they are going to vote is a bad procedure for any law, but this proposed change is not just “any law.” Amendment D is a change to the Utah Constitution that would permanently decrease the power of citizens’ ballot initiatives by giving power to the Legislature to immediately repeal them — no matter what public feedback suggests. Choosing how to vote on important legislation isn’t easy, and there are many different considerations that each individual lawmaker might weigh with an important vote. All lawmakers have a responsibility to listen to their constituents on important issues, and they cannot do that if the commitment to vote a certain way happens before their constituents are even allowed to know what changes are being suggested.
Amendment D is on the ballot for November, but a 3rd District Court Judge has ruled that the ballot language crafted by leadership was misleading and that a constitutionally required notice was not met; therefore, the ballot question is void and votes for or against will not be counted. However, with appeals, this might change, and it is important for voters to be aware of how this amendment rolled out.
This is not the right way to propose changes to our constitution. I believe process matters, and Utahns deserve better.
Marsha Judkins is a member of the Utah House of Representatives. She represents District 61.