In July 2024, the Utah Supreme Court issued an opinion that some see as a victory of the People of Utah over a self-serving Legislature. The opinion came in a lawsuit (“redistricting litigation”) challenging the Legislature’s 2021 redrawing of congressional boundaries. The opinion did not directly address the partisan gerrymandering claims involved in the case. Instead, the Court addressed another claim relating to a 2020 law enacted by the Legislature. The 2020 law changed a law enacted in 2018 by voters through the initiative process. The Court determined that the 2020 Legislature-enacted law violated the Utah Constitution because it undermined the 2018 initiative-enacted law. The Court’s opinion has reshaped thinking about the exercise of legislative power in Utah. It has also caused a great deal of consternation among state lawmakers and generated friction between the Legislature and the Judiciary. That would all be fine and well except for one other thing: the opinion is fundamentally flawed. It mistakenly equates voters’ exercise of their constitutionally established legislative power with the People’s exercise of their inherent sovereign power.
Background
Before explaining the conclusion just stated, I must unfortunately digress and give some personal background to provide some context for this writing. I recently retired after working 29 years as a lawyer for the Utah Legislature. I was one of the lawyers representing the Legislature in the redistricting litigation. You may think that with that background, my opinions are skewed in favor of the Legislature. That’s a fair concern. No writer is free from bias, and I’m no exception. But working for the Legislature is not the same as agreeing with the Legislature. Every lawyer understands that representing a client sometimes requires a lawyer to articulate and even zealously defend positions she doesn’t personally agree with. That is no less true for a legislative attorney. While working for the Legislature, I zealously worked to help legislators from both sides of the aisle achieve their often-conflicting policy goals. My credibility and effectiveness as a legislative lawyer depended on my being nonpartisan, objective, and impartial. Having retired, however, I am no longer required to suppress my own opinions, even if they diverge from those of my former clients.
In any event, the focus of this article is not the Legislature’s actions or policy choices. This article takes no position on the merits of the 2018 voter initiative that enacted a law creating an independent redistricting commission and establishing redistricting criteria; the 2020 legislation passed by the Legislature that substantially modified the 2018 initiative-enacted law; or the 2021 congressional map adopted by the Legislature. Instead, I write from the perspective of a long-time student of the Utah Constitution. During a fifth of the state’s history, I was responsible as a legislative attorney for drafting every proposed amendment to the Utah Constitution, typically 10 to 20 per year. Drafting proposed constitutional amendments was not just a writing exercise but required extensive research and study of the Utah Constitution, its history, and the origin and intent of concepts and language within the constitution, as well as often the constitutions of other states. There are few people who have as much experience with the Utah Constitution as I have. This experience has given me a deep respect for the constitution and for the principles articulated there.
In sum, I am not writing to defend or apologize for the Legislature. In fact, I personally disagree with much of what the Legislature did in connection with redistricting. Nor am I writing to bash the Court. I have great respect for both branches of our government and for those who serve in them. I am writing from my perspective as a student of the Utah Constitution. The only ax I have to grind is in support of the constitution that I respect and love.
Two concepts addressed in the Court’s July 2024 opinion
In 2018, voters approved a law that had been proposed through the initiative process. The 2018 law created an independent redistricting commission and established criteria to govern redistricting in Utah. In 2020, the Legislature enacted a law that modified
the 2018 initiative-enacted law. In its July 2024 opinion in the redistricting litigation, the Utah Supreme Court concluded that the 2020 Legislature-enacted law violated the Utah Constitution.
Two concepts and constitutional provisions are at the heart of the Court’s July 2024 opinion:
• Article I, Section 2 (“All political power is inherent in the people; . . .” and they may “alter or reform their government as the public welfare may require.”); and • Article VI, Section 1 (the ”legal voters . . . may initiate any desired legislation. . . .”).
These two concepts are separate and distinct and have different theoretical underpinnings. Unfortunately, the Court conflated them.
Article I, Section 2: the People’s inherent sovereign power
There is nothing controversial about the concept that all political power resides with the People and that they may establish a government and then change it as they please. It is a fundamental principle that has been around since before the founding of the United States. The principle is articulated in the Declaration of Independence, which declares one of the “self-evident truths” upon which this country was founded: governments derive “their just powers from the consent of the governed.” In other words, the sovereign is the People, not some self-appointed monarch or even an individual or body elected by the People.
That principle is reflected in Article I, Section 2 of the Utah Constitution, which states:
All political power is inherent in the people; and all free governments are founded on their authority for their equal protection and benefit, and they have the right to alter or reform their government as the public welfare may require.
The source of the People’s sovereign power in Utah is not this language of the constitution. This sovereign power is a “self-evident” power the People possess inherently. This principle was considered so self-evident that a prominent delegate to the 1895 Utah Constitutional Convention argued that the language of Article I, Section 2 was unnecessary. The inclusion of Article I, Section 2 in the Utah Constitution was not meant to establish the People’s sovereign power but merely to reflect the already existing principle. The inclusion of that language did not establish the principle any more than the absence of that language would have destroyed it.
Exercising that inherent sovereign authority, the People of the then-Territory of Utah established a structure of government through the adoption of the Utah Constitution. Parenthetically, it is worth noting that the People did not themselves meet to debate, formulate, and adopt a constitution. Rather, they elected delegates to represent them at a constitutional convention to debate and formulate a proposed constitution that would then be submitted to voters for approval.
The original constitution, adopted by voters in 1895, followed the familiar pattern of dividing the powers of government among three separate branches. The constitution specified the officials who would exercise the state’s executive power and judicial power. The 1895 constitution also vested the legislative power of the state in a Senate and House of Representatives, designated as the Legislature. Although in the exercise of their sovereign power the People could have reserved to themselves some executive, judicial, or legislative power within the framework of the government their constitution established, they did not. They delegated all those powers to officials described in the constitution.
It is important to note here that despite not reserving any executive, judicial, or legislative power, the People nevertheless retained all their inherent sovereign power. The People could exercise that sovereign power at any time; they could at any time “alter or reform” or even overhaul the government structure they had set up. And the People themselves established a process for exercising that sovereign power. That process is a constitutional amendment. The process can be initiated only by the People’s elected representatives, similar to the pattern of the process used to adopt the constitution. The People could have allowed voters to initiate the process of amending or rewriting the constitution, as the People in some states have done, but they did not. Instead, they required any modification to the constitution to be initiated by two-thirds of their elected representatives in the Legislature and then approved by voters. Some may question the wisdom of that choice. But the constitution is clear that the People’s exercise of their inherent sovereign power to make changes to the fundamental structure of their government as set forth in the constitution – “to alter or reform their government” — requires their elected representatives to act first.
Requiring both a super-majority of the Legislature to initiate and then voters to approve a change to the constitution helps protect against enshrining in the constitution ideas or principles that enjoy only transitory or marginal political support. Altering or reforming government is supposed to be difficult. That difficulty helps preserve a degree of durability in the constitution beyond that of mere laws.
The People’s power to “alter or reform their government” is part of the People’s inherent sovereign power and is more fundamental than the constitution itself. That power may be articulated in the constitution, but it does not emanate from it and is not established by it. And the “alter or reform” clause of the 1895 constitution could not have been understood to refer to the voters’ exercise of legislative power because at the time the voters had no such power.
Article VI, Section 1: voters’ legislative power
As noted, the original Utah Constitution vested all legislative power of the state in the Legislature. Only the Legislature could enact legislation; the People or voters could not. The People, of course, retained all political power and could, through a constitutional amendment, make small or sweeping changes to the government they had established. But they could not themselves or through voters enact legislation. That legislative power was vested exclusively in the Legislature.
Four years after the original constitution took effect, the People again exercised their inherent sovereign power through the process they had established in the constitution. Their elected representatives in the Legislature proposed and in 1900 the voters adopted a constitutional amendment. The amendment did not alter executive or judicial power established under the original constitution but did affect the legislative power originally vested exclusively in the Legislature. Under the 1900 amendment, legislative power was vested also in “the people of the State of Utah,” to be exercised by the “legal voters or such fractional part thereof . . . as may be provided by law.” This power to enact legislation was qualified; it was to be exercised “under such conditions and in such manner and within such time as may be provided by law.”
Unlike the People’s inherent sovereign power, the voters’ legislative power does not exist independently of the Utah Constitution. The voters have legislative power only because the People, exercising their inherent sovereign power, gave them that power. The voters of roughly half the states do not have legislative power under their constitutions. The legislative power in those states is given to the People’s elected representatives — the Legislature or Assembly — just as the original Utah Constitution vested all legislative power of the state in the Legislature.
There is nothing in the language or history of the 1900 amendment to suggest that elected representatives who proposed the amendment or voters who approved it thought that voters exercising legislative power would be the same as the People exercising their inherent sovereign power to alter or reform their government. Nor is there anything in the language or history of the amendment to suggest that a law enacted by voters through an initiative would be protected against further legislative action, whether by voters or by the Legislature. Had either of those concepts been intended, that intent could have easily been – and I believe would have been – made clear. If the intent of the 1900 amendment had been to make the voters’ legislative power not a check but a muzzle on the Legislature, that intent would have been made clear. It was not.
The fundamental flaw of the Court’s July 2024 opinion
In its July 2024 opinion, the Utah Supreme Court concluded that the voters’ 2018 exercise of their legislative power under Article VI was an exercise of their constitutional “right” to “alter or reform their government” under Article I. According to the Court, the Legislature’s enactment of the 2020 law that modified the 2018 initiative-enacted law was a violation of that “right” and was therefore unconstitutional.
The fundamental flaw of the Court’s July 2024 opinion is its failure to acknowledge and give proper regard for the difference between a legislative act by voters under Article VI and the People’s exercise of their inherent sovereign power. Enacting a law using legislative power granted under Article VI is not the same as exercising the power to “alter or reform” government as that concept is understood in the context of Article I language reflecting the People’s inherent sovereign power. Legislative power is the power to legislate, not the power to “alter or reform” government. Because of the 1900 amendment, both the Legislature and voters have legislative power. But neither the Legislature nor voters can enact legislation that alters or reforms government in the Article I, Section 2 sense. Such “alter[ing] or reform[ing]” of government can happen only through a constitutional amendment, which requires approval both of two-thirds of the Legislature and of voters.
Despite that constitutional requirement, the Court has now sanctioned another way to “alter or reform” government in the Article 1, Section 2 sense. That is through a law enacted by voters using the initiative process. This newly recognized method does not require the cumbersome and difficult process of a two-thirds vote of the Legislature followed by voter approval. Under the Court’s July 2024 opinion, voters alone may “alter or reform” government by exercising their legislative power under Article VI. And an initiative enacted law enjoys a durability comparable to that of a provision of the constitution. An initiative-enacted law will stay on the books indefinitely, protected from the Legislature’s exercise of its otherwise full power under the constitution to enact laws, unless the Legislature clears an almost impossible hurdle. This gives an initiative-enacted law the practical equivalence of a constitutional amendment, but without the bother of actually amending the constitution.
There are likely a number of practical implications from the Court’s July 2024 opinion. Most of those are currently unknowable. But the one sure and present result is a distortion of the intent and meaning of the Utah Constitution. Hopefully the Court will have the opportunity to correct its mistake in a future decision. Not for the benefit of any specific individual, group, organization, or institution, but for the integrity of the People’s constitution.
