For months legislative leaders have been quietly negotiating a deal with Better Boundaries, the group behind the Prop. 4 anti-gerrymandering ballot initiative. Those talks stalled on Thursday afternoon, but lawmakers are set to move forward with plans to make changes to the voter-passed measure anyway.
Prop. 4, which creates an independent commission to draw political boundaries during the once-a-decade redistricting process, has been a sore spot for many lawmakers on the Hill who bristled at what they see as an intrusion on their powers since the Utah Constitution gives them sole authority for aligning those boundaries.
The forthcoming bill contains most of what lawmakers and representatives for Better Boundaries were able to agree on. But, the ultimate sticking point was whether or not to put in statute concrete rules both the independent commission and lawmakers had to follow.
“We agreed that the independent commission should be able to establish whatever standards they want to adopt for the purposes of doing their work,” said Sen. Curt Bramble, R-Provo who has been discussing possible changes with Better Boundaries since the 2019 legislative session. “They want us to put in statute standards that have not been upheld by the Supreme Court.”
The original text of Prop. 4 requires that both the independent commission and legislature ignore where incumbent lawmakers live and work to achieve “partisan symmetry” in the districts, and the maps cannot favor or disadvantage any incumbent officeholder, candidate or political party.
“Every time we asked them to define ‘partisan symmetry,’ they couldn’t do it,” said House Majority Leader Francis Gibson, R-Mapleton.
“There are some real issues with constitutionality that we had to deal with,” added Senate Majority Leader Evan Vickers, R-Cedar City.
The changes to Prop. 4 proposed by lawmakers will not detail standards that the commission or legislature must follow when drawing up new political maps. The commission will be free to adopt whatever standards they choose. Lawmakers will continue to follow current law, which prohibits them from using partisan political data to draw maps. But, the 2019 Supreme Court ruling that gerrymandering is a political issue that must be resolved by the elected branches of government gives lawmakers wide latitude when drawing boundaries next year.
Also out of the proposed changes to Prop. 4 is a provision allowing Utah residents to challenge a map in court that violates any of the standards. Since the bill won’t specify any standards or guidelines, the issue would be moot.
Legislative leaders are acutely aware of the politics surrounding this issue, especially after they made changes to Prop. 2 (medical cannabis) and Prop. 3 (Medicaid expansion) which angered many voters.
“If I ask my constituents in Utah County if they want ‘partisan symmetry,’ they’re not gonna know what that means,” says Sen. Curt Bramble, R-Provo.
“Voters wanted an independent redistricting commission, and that’s what they’re getting,” says Gibson.
There are several other changes to Prop. 4 that lawmakers negotiated with Better Boundaries in the bill.
The number of members on the independent commission will not change, but how they are appointed, and the partisan makeup will. Originally, the governor, Speaker of the House and President of the Senate got to pick one member as did the minority leaders in both the House and Senate. The last two spots were selected by the majority and minority parties in the House and Senate. Given the current partisan makeup of the state, the commission would be 4 Republicans and 3 Democrats.
The new proposal still gives one appointment to the governor, Speaker of the House and Senate President and the minority leaders in the House and Senate. But, the final two slots would be chosen by the Speaker and President together, but those nominees must not have been affiliated with any political party for at least two years. Theoretically, the partisan makeup of the board would be 3 Republicans, 2 Democrats and 2 independents.
The commission can present as many maps as they want to lawmakers. Prop. 4 required the commission to have at least 5 members vote in favor of any map forwarded to the legislature. That’s also been removed.
Legislators have also agreed to fund a staff for the redistricting commission. Prop. 4 required legislative staff to serve the commission, but legislators say it presented a conflict of interest.
Politically, changing Prop. 4 will be a difficult vote for some lawmakers. Overall, Prop. 4 passed with the narrowest of margins with just 50.3% in favor and 49.7% against. The initiative failed in 18 of 29 Senate districts and 43 of 75 House districts.
Legislative leaders believe they have enough votes to pass the changes to Prop. 4 with a ⅔ majority, which would be enough to avoid a citizen initiative to overturn the changes or a potential veto from Governor Herbert. But getting there would require at least two Republicans in the Senate and 7 in the House who represent districts that passed the initiative to approve the changes.
Better Boundaries did not respond to a request for comment, but sent out a press release Friday morning claiming the legislature was moving to "repeal" the initiative. Legislative leadership told UtahPolicy.com that, although repeal was on the table for a while, they felt the more prudent move would be to make changes to the initiative.