How fair is the citizen initiative signature rescission process?

It’s nail-biting time for supporters and opponents of the four initiative proposals that citizens are trying to place on the 2018 November ballot. Tuesday, May 15, is the deadline for initiative opponents to turn in documents rescinding signatures. After Tuesday, the lieutenant governor’s office will total the number of signatures verified, the number of signatures rescinded, and will determine which initiatives qualify for the ballot. That likely won’t end the controversies, however.

If passed, the initiatives would institutionalize Count My Vote, fully expand Medicaid, create a commission to propose political district boundaries and allow marijuana to be used for medical purposes. The rescind efforts have sparked accusations of deception and even bullying. What is going on here?

Pignanelli: “Democracy is not just an election, it is our daily life.” — Tsai Ing-wen

Supporters and opponents of the initiative efforts are accusing the other of unfair tactics, misleading messaging, false representations, intimidating behavior and other outrageous activities. So the initiative campaigns have devolved into … resembling every political contest for the last 10,000 years of human history.

Direct democracy is just as nasty, brutish, competitive, energetic and important as representative democracy. Until this year, Utahns only infrequently experienced such trauma. Two initiatives passed in 2000 and a referendum (to repeal the legislative sponsored school voucher law) in 2004. In response to both, the Legislature established such high hurdles any similar attempts for ballot measures since then faltered or were voluntarily extinguished.

But our local political environment has dramatically changed. The CMV compromise legislation created a permanent signature gathering industry. Data analytics provides better targeting of, and messaging to, voters. Social media inexpensively and efficiently enthuses supporters and detractors. Large well-funded special-interest groups commit massive resources. These dynamics breed emotional controversy.

A nightmare for well-adjusted Utahns, the new battle lines and weapons used by contestants supporting and opposing initiatives are intriguing for those of us in the demented political hack species.

Webb: I have mixed feelings about the rescind efforts because I strongly support Count My Vote and want the rescind effort to fail. But I strongly oppose the marijuana initiative and would like the rescind effort to succeed.

This issue is fascinating, because we really are in uncharted territory. This is the first time under current law that statewide citizen initiatives have successfully gathered enough signatures to qualify for the ballot and have faced rescission efforts. No one really knows how difficult or easy it is to defeat a proposal by asking petition signers to remove their signatures. But we’ll know in the next few days. Lawsuits are likely, along with complaints to the lieutenant governor’s office.

s the process allowing opponents to defeat an initiative campaign by potentially removing just a few signatures a fair process?

Pignanelli: Fairness is a much desired, but missing, element in politics. I have participated on both sides of state and municipal initiative efforts — fighting to keep the number of signatures above a threshold or scrounging for rescissions to prevent ballot placement. Such activities are tactics, not policy indicators, in public affairs campaigns.

As with any other political campaign advertisement, messages to solicit signatures — whether through media or in person — are imbalanced and minimally factual. So a rescission effort is the very imperfect but necessary means to provide the opposing viewpoint and ability for voters to retract their decision.

Webb: The question is whether some equivalency should exist in the difficulty of gathering signatures and the difficulty of rescinding signatures. It is incredibly difficult to obtain at least 113,000 signatures of registered voters with the required distribution in at least 26 of Utah’s 29 state Senate districts. Success requires an immense effort engaging hundreds of volunteers and paid staff over several months, costing a million dollars or more.

Hypothetically, all that effort could be negated if opponents of the ballot proposal rescind just a very few signatures in just one Senate district. The practical reality is that initiative supporters must gather far more verified signatures than the 113,000 to protect against rescind campaigns. Even then, a dedicated group of activists, or someone with enough money to hire paid signature removers, will have a shot at removing a proposal from the ballot by focusing on just one or two districts and rescinding a relatively few signatures.

Under Utah’s Constitution, citizens clearly have the right to make laws. And the courts have clearly held that the process must not be so difficult as to make citizen lawmaking nearly impossible. Given the rescind campaigns we’re seeing, some smart lawyers could make a pretty strong case that the hurdles to citizen lawmaking under the current rescission provisions are too high. I think the courts might agree.

When all is said and done, will any of the rescind efforts be successful? Will the Legislature make any adjustments to the process?

Pignanelli: An overwhelming number of signatures creates impossible obstacles for rescission efforts. Thus, the marijuana initiative is safe. But the others could be in jeopardy. Legislators may tinker with some procedural details, but not eliminate the current process.

Webb: I can’t predict. Certainly, enough signatures can be rescinded to kill an initiative if the opponents are well-organized, well-funded, have a detailed campaign plan and ready to execute immediately when the rescind period begins. The opponents probably weren’t quite that well organized this year.

The Legislature doesn’t particularly like citizen lawmaking, so I don’t expect any action there.