Based on the tough questions posed by four of the five Utah Supreme Court justices Wednesday, it does not look likely that the 63 percent of voters who support Count My Vote will get their say in November on the proposed citizen initiative.
Only Justice Paige Petersen showed any sympathy for CMV’s emergency petition to the high court to put their initiative on the Nov. 6 ballot after it was disqualified by the Lt. Gov. Elections Office earlier this summer.
While CMV officials gathered many more signatures (134,000) than the required 113,000 to make the ballot, organized opposition by the Keep My Voice group was able to get just enough signatures removed in two of 26 state Senate districts to deny CMV a ballot position.
That dropped the CMV count the below 10 percent needed in 26 of 29 Senate districts – kicking them off the ballot.
Wednesday, CMV attorneys asked the high court to overturn the ballot position denial – and put the measure on the ballot.
But four of the five justices seemed to have little symphony for CMV’s legal arguments.
At one point Justice Thomas Lee almost shouted his disapproval at CMV attorney Matthew Cannon’s argument.
Cannon attempted to say that the high court has the power to “see” an undue burden on the signature initiative process and remedy it.
But Lee claimed courts have no such authority and must follow the law as set by legislators unless some kind of unconstitutional provision is clearly passed.
Judging by comments made by the other three justices, only Petersen seemed to believe that giving opponents of a petition 30 days to contact those who signed, try to convince them to take their names off, was an unfair, or undue, burden on the original petitioners, and could well deny Utah citizens their constitutional right to create law via voter-signed, voter-approved, petitions.
For the Count My Vote group – headed by political and civic leaders like former GOP Gov. Mike Leavitt and Utah Jazz owner Gail Miller – this is the second time around in their effort to ensure that political candidates can take a dual pathway to a party’s primary ballot – which is controlled and paid for by state taxpayers.
Back in 2014 CMV was well on its way to getting the signatures they needed when the Legislature struck a deal with the group: CMV dropped the effort, and lawmakers passed, and GOP Gov. Gary Herbert signed SB54 – which says candidates can gather signatures, go through the party caucus/delegate/convention process, or take both routes at the same time to the primary ballot.
However, the Utah Republican party – the dominant party in Utah – never agreed to SB54 and has been in court attempting to overturn SB54 for years, always losing their challenges. Their next step is the U.S. Supreme Court.
Meanwhile, seeing constant attacks against SB54 in the Legislature, CMV decided to run a petition this year which reflects SB54 – to, in effect, get voters to enshrine it, and blunt future efforts by lawmakers to repeal or gut it.
CMV got their signatures this year.
But Keep My Voice, who gave up on their own petition drive because of low voter interest, went after CMV signees in several rural Senate districts – which have a large percentage of Republicans.
KMV – with the big bucks of anti-SB54 activist Dave Bateman – got just under 200 folks to take their names off of the CMV petition.
Overall, .04 percent of the CMV signees took their names off, thus killing the petition.
It was that kind of “unfair” and “overburdened” arguments CMV attorneys tried to make to the high court justices.
But Lee, Chief Justice Matthew Durrant, and justices Dino Himonas and Greg Orme, sitting in for a justice who recused himself in this case, peppered Cannon with questions seeming to disagree with CMV’s arguments for relief.
Some were legally technical in nature. Some showing disbelief in the petitioner’s arguments at the most basic level – like Lee’s argument that justices have no real yardstick to determine if the current petition law is too burdensome for petition advocates, i.e., voters, to reasonably meet.
Petersen noted several times it seemed to her that so few people taking their names off in one or two Senate districts seemed an undue burden and unfair – to deny all citizens the right to vote on the issue.
A recent UtahPolicy.com poll by Dan Jones & Associates found that 63 percent of Utahns (nearly two-thirds) support the CMV petition, even most Republicans support it.
Historically, courts around the nation tend to put candidates and initiatives on ballots if there are questions of legality or appropriate actions by counties or states trying to disqualify ballot access.
In short, judges let citizens decide, not themselves.
But from the arguments made by most of the Utah justices Wednesday it didn’t look like they were going to do that.
A decision must come in the next two weeks, as the Utah Elections Office/county clerks must certify the ballot by Aug. 31.
If CMV loses it’s not the end for SB54 and the dual-route for candidates.
Herbert is on the record saying he will veto any attempt to repeal or gut SB54. If he stands by that, the law is likely protected until he leaves office the end of 2020.
CMV could come back in 2020, get even more signatures overall and, especially, in rural Senate districts, so that even if KMV comes back with Bateman’s money to instigate a signature removal effort, the CMV numbers will hold up – where they failed this year.
And voters could decide the matter in two years.
The GOP-controlled Legislature could also act to lower the initiative requirements or make it harder to remove signatures.
But that is unlikely, as historically lawmakers have disliked, even hated, citizen initiative efforts, believing they (lawmakers) should be making laws, not special interest groups who use the constitutional initiative process.