Pignanelli & Webb: Is the ballot initiative process working well for Utah?

Last week, the Legislature once again revised legislation prompted by the medical marijuana initiative passed by voters in 2018.

Last week, the Legislature once again revised legislation prompted by the medical marijuana initiative passed by voters in 2018. While these recent changes were uniformly applauded, issues related to the initiative process itself remain unresolved. We jump head-first into the fray.

Legislators are seriously considering a proposal submitted by county clerks and the lieutenant governors office to allow initiative petition sponsors to gather signatures online. Cost savings to the government agencies would result, but there are obvious concerns with such a proposal. Is there merit to this?

Pignanelli: “Technology should be used for people’s overall welfare … instead of misusing it to win elections.” — Chandrababu Naidu

SB54 — the legislation to allow candidates placement on a primary ballot through signatures — is the white elephant gift of Utah politics. It keeps reappearing. This 2014 bill fostered homegrown signature gathering companies, thereby encouraging statewide and local initiatives. This “direct democracy” activity is now burdening county clerks who verify signatures, prompting considerations of technology allowing voters to sign a digital copy of a petition.

Justin Lee (director of elections and a very cool guy) testified online signatures could diminish initiatives as personal outreach is more persuasive than an email blast. However, others (especially legislators) contend the approach would greatly incentivize initiatives — statewide and in cities — as significant signature costs would drop. Further, many are concerned with the potential for mischief.

Initiatives and referenda are an important element of our democracy. Online voting for them more than eliminates administrative burdens, it dramatically realigns the relationship between campaigners and voters. This explains why the process is not suggested in elections. Much more study is needed.

This white elephant gift should remain under tree until next season.

Webb: Allowing online signature gathering might make sense. But I would caution against making the process too easy or we’ll end up like California with dozens of nutty proposals on the ballot.

Most laws ought to be made by the Legislature, not by direct democracy. Thus, getting an initiative proposal on the ballot ought to be difficult, but not impossible. The current initiative process is arduous and costs a lot of money, but it does strike the balance pretty well.

One good improvement would be to make the processes of getting a proposal on the ballot, and getting an initiative rescinded, more equivalent in difficulty. Right now, it’s grueling to get a proposal on the ballot, but relatively easy to rescind enough signatures to take it off.

The narrowly passed Proposition 4 established a bipartisan redistricting commission to redraw boundaries for federal and state offices in 2021. A recent U.S. Supreme Court decision reaffirmed state legislative supremacy in redistricting. Thus, serious discussions are occurring at the Capitol to revise the language of Proposition 4. Should and will this happen?

Pignanelli: The two “Supremes” — U.S. and Utah — delivered to lawmakers the permission and justification to amend passed initiatives to their collective hearts content. Politically, to do otherwise is a surrender of power.

Furthermore, this initiative begs alterations. The out-of-state big-money funders concocted a scheme that is discriminatory in construction and problematic in implementation. Every supporter I queried could not adequately respond to the multiple problems plaguing this hash. If legislators explain their actions, the resulting furor will diminish rapidly.

Webb: Essentially all propositions passed by voters do need some refining. That’s because they don’t go through the arduous legislative process where proposed bills get changed and improved in committee hearings and floor debate. No one is smart enough to write the perfect bill that never needs refinement.

That is certainly true with the Proposition 4 redistricting commission proposal. It has a number of flaws that should be fixed by the Legislature. But that’s not a reason to totally rescind the Proposition 4 law. An advisory commission to recommend redistricting to the Legislature is certainly appropriate. Ultimately, however, redistricting is a political activity. It’s impossible to take all politics out of the process. Final decisions should be made by the people elected by voters.

In August, the Utah Supreme Court ruled that the Legislature could replace the successful medical marijuana initiative with the legislation passed in the December 2018 special session. Litigants believed the voter-supported proposition trumped any legislative action. Was the court correct and what does this mean for future initiatives?

Pignanelli: Our state constitution “vests” legislative authority with the Legislature and the “People.” Both possess power to enact and amend each other’s legislation. Sponsors now have greater responsibility to ensure the intent and language of the Initiative are defensible during elections, and in the court of public opinion afterwards.

Webb: Sorry, folks, but a law created by voters has the same status as a law created by the Legislature. Thus, the Legislature can change an initiative law at will. However, lawmakers usually respect initiative laws because those laws reflect the will of voters. Legislators who vote to rescind or dramatically change a voter-created law could face consequences at the next election.