As you may recall, Utah lawmakers changed two voter-approved citizen initiatives in recent months, and now there may be an effort to change the third – Prop. 4’s independent redistricting commission, UtahPolicy.com has learned.
While there are no specific proposals to change how the post-Census independent commission would operate, various GOP legislative leaders – and indeed Republican Gov. Gary Herbert – have said there are “problems” with Prop. 4 that should be addressed.
As reported last February by UtahPolicy.com, there were “preliminary” talks early in the 2019 Legislature between Better Boundaries, the bipartisan citizen initiative group behind Prop. 4, and GOP lawmakers. Nothing came from them.
But, momentum is beginning to build on Utah’s Capitol Hill for lawmakers to address what they see as significant problems with the law.
UtahPolicy.com has learned that lawmakers have been meeting to discuss strategies for making alterations to Prop. 4, which may include an attempt at outright repeal of the voter-passed initiative.
One topic of discussion is the public outcry that would spring from such an effort, especially after lawmakers overrode the medical cannabis and Medicaid expansion initiatives. That could be a significant public relations nightmare for lawmakers. Better Boundaries backers are already fundraising off of the possibility that lawmakers may attempt to make changes to the commission.
Some lawmakers have suggested in private that if they’re already going to get clobbered in public for making changes to Prop. 4, then any backlash won’t be much worse if they go ahead and outright repeal the law. However, UtahPolicy.com is told, the repeal faction is a minority right now and not what most legislators are thinking.
UtahPolicy.com is told some lawmakers feel emboldened to make changes to Prop. 4 after the U.S. Supreme Court ruled in June that federal courts could not take up challenges to partisan gerrymandering, instead making it clear that was the exclusive domain of individual state courts. That decision, the reasoning goes, gives Utah lawmakers wide latitude to make changes since drawing political boundaries is a power given to legislators by the state Constitution.
House Majority Assistant Whip Rep. Val Peterson, R-Orem, says lawmakers are still digesting how to proceed in light of the Supreme Court decision.
“We’re trying to work through what that means in terms of Prop. 4,” said Peterson. “We need to balance that decision with our constitutional duties and the rights of citizens to enact law.”
Better Boundaries Executive Director Rebecca Chavez-Houck, a former House Democratic leader, says there have been no discussions between her organization and lawmakers since the end of the 2019 general session. She adds her organization is prepared to sit down with legislators when they are ready to move forward with possible changes to Prop. 4.
“We hope they bring us to the table when they have some concrete proposals for making changes to Prop. 4,” she said. “The people of Utah voted for gerrymandering reform, and we hope any changes they propose reflect the will of the people.”
Sen. Todd Weiler, R-Woods Cross, an attorney, points out several problems – he calls them “fatal flaws” — he has with Prop 4 in a UtahPolicy.com interview:
— Separation of Powers:
Prop. 4 says in two different places that the chief justice of the Utah Supreme Court will take actions if the independent commission can’t be formulated or operate as designed.
First, the chief justice – a position currently held by Matthew Durrant – will appoint commission members if the House speaker or Senate president, or both, refuse to make their appointments to the seven-member commission.
Second, the chief justice will pick the redistricting map if the commission, for whatever reasons, can’t come up with a majority-supported map themselves.
“I don’t see the chief justice doing either of those things” if called upon, said Weiler, since it would be a clear violation of the branches of government separation of powers in the Utah Constitution.
Like in many state constitutions, the Utah Legislature is given the right of redistricting, the courts have no role there except to rule on any redistricting legality.
— Conflict of Interest:
Prop. 4 says the commission may “use” legislative attorneys and staff as their staff in the redistricting process.
But Weiler says if the Legislature disagrees the with commission maps, then lawmakers’ own attorneys will be put in an “adversarial” position with their bosses, unacceptable and likely illegal.
One workaround being floated is to fund the independent commission and allow them to hire their own staff instead of using legislative attorneys.
— Legal Action:
Prop. 4 says if the Legislature doesn’t adopt the commission map redistricting, then any state resident can sue, and have standing.
Weiler says that would allow an out-of-state special interest group to get a Utah P.O. box and sue the state.
No entity has successfully sued Utah over recent legislative-approved redistricting, but Weiler sees “all kinds” of lawsuits over Prop. 4 maps if “anyone” doesn’t like them.
He says that is especially likely since Prop. 4 talks about “partisan symmetry,” but doesn’t define it, and there is no definition in law.
Weiler says GOP legislative leaders were wise not to attempt to pass some kind of Better Boundaries compromise during the 2019 general session, considering that in a December special session they changed Prop. 2 – medical marijuana – and early in the general session they changed Prop. 3 – Medicaid expansion.
Both those changes may have to be revisited in special sessions this fall, as problems with what the Legislature did come forward.
“We may end up making no changes” to Prop. 4, the independent redistricting commission law, said Weiler.
But he believes there are real pitfalls if some are not made.
“The good thing is we have time” before the 2020 Census numbers are tabulated in 2021. “The commission really has little to do until those numbers come in.”
By October 2021, the Legislature/commission will have to adopt new U.S. House and legislative district boundaries for candidates to run in in 2022.