Somewhere in the great beyond, Sherman S. Smith is smiling.
Smith was a populist, which was just as rare in the Utah Legislature at the dawn of the 20th century, when he served as a representative of Ogden, as it is today. Yet he somehow got lawmakers to pass an amendment in 1899 to the state Constitution allowing the people to pass or modify laws directly through initiatives or referendums.
Voters then ratified this at the ballot box in 1900, and generations of Utah lawmakers have been fighting it ever since.
That battle took another turn on Thursday — this time decidedly in favor of the people. The drawing of political maps may never be the same.
But history suggests this won’t be the last word.
Back in 1900, lawmakers tried to ignore the whole initiative thing. They waited 16 years to pass any sort of law outlining how this new right was to be exercised, then spent more than a century trying to either water down or entangle it in a labyrinth of rules.
But they have never been able to navigate around one huge obstacle — Smith’s amendment still sits in the Constitution, right where he helped to place it.
On Thursday, the state Supreme Court said that has to mean something.
“The people’s constitutional right to alter or reform their government is protected from government infringement,” said the unanimous opinion, authored by Justice Paige Petersen. “We could not hold otherwise, as the Declaration of Rights of the Utah Constitution states explicitly that: All political power is inherent in the people; and all free governments are founded on their authority for their equal protection and benefit, and they have the right to alter or reform their government as the public welfare may require.”
And when they do so, “these rights (are) protected from government infringement.”
In 2018, Utah voters passed three citizen initiatives into law. Lawmakers ended up rewriting all three, to some extent. One of those was a measure that created an independent redistricting commission to redraw the state’s political maps every 10 years. Lawmakers enacted changes that were challenged through a lawsuit by a group that included the League of Women Voters of Utah, Mormon Women for Ethical Government and a group of Salt Lake voters.
They said Republican lawmakers were drawing these maps in ways that preserved their own power. Or, in other words, they were trying to choose their voters, rather than let voters choose them.
Voters approved this initiative, but before new maps could be drawn in 2021, state lawmakers had passed a law that, among other things, allowed them to reject the new commission’s recommendations without comment. The original initiative had required them to publicly state their reasons for rejecting those recommendations and to explain why their maps “better satisfie(d)” the neutral “redistricting standards and requirements” the initiative called for.
Now, the Supreme Court has sent this case back to a lower court. More importantly, it has ruled that the state Constitution “limit(s) the Legislature’s authority to amend or repeal an initiative that reforms the government.”
That’s a decision that likely will reverberate through Utah’s halls of power for a while. Judging by a strongly worded statement by the House speaker and Senate president, which accused the court of moving Utah more toward California, the battle will continue.
Lawmakers do have some good reasons for disliking initiatives. Voters elect state lawmakers to represent them in the arduous task of writing laws. Generally speaking, bills are subject to committee hearings, where they can be amended and where the public can voice opinions. Still, members of the public that attend such meetings get a few minutes to speak and sometimes leave believing lawmakers have made up their minds long before the committee meeting.
Initiatives, on the other hand, are presented to voters for an up-or-down vote, period.
Also, lawmakers have a duty to look out for the welfare of the entire state and its budget. An initiative, on the other hand, could raise taxes or reallocate funds for one narrow purpose without considering its effects on other parts of the state. Two other 2018 initiatives — one legalizing medical marijuana and one expanding Medicaid — were either broadly written or included tax increases. Lawmakers are left to deal with the unintended consequences of such things.
And yet, lawmakers sometimes ignore things the public has said it wants. Also, voters have at times risen up to kill laws they didn’t like, from a school voucher law in 2007 to a tax reform package in 2020.
Back in 1900, when Smith still roamed the Capitol, Utah was only the second state to adopt an initiative and referendum process, behind South Dakota. Yet it wasn’t until 1961 that one actually passed.
Today, Utah is one of only 26 states that allow initiatives, referendums or both, according to Ballotpedia.
In other words, these are not rights guaranteed by the U.S. Constitution. Even though it was 124 years ago, Utah voluntarily chose to put itself in this pickle.
But democracy never was intended to be easy. When representative government has to contend with direct democracy, that is at least doubly so. The result of this struggle, however, could be better laws and outcomes. At least, that’s what I imagine Sherman S. Smith would tell us if he were here.