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SALT LAKE CITY — Utah's highest court is asking for further arguments from both sides in a case over the validity of Utah's congressional voting maps after lawmakers changed a 2018 ballot initiative meant to give redistricting power to an independent commission.
The lawsuit, filed last year by the League of Women Voters of Utah, Mormon Women for Ethical Government and several individual plaintiffs, alleges the Legislature undermined Utahns' constitutional rights to a free election when it adopted a new voting map that gives Republicans broad majorities in all four districts. Lawmakers have said they split Salt Lake County four ways to ensure each district has a mix of rural and urban voters.
But another part of the complaint isn't related to gerrymandering or the maps themselves. Instead, it argues the process the Legislature took to alter Proposition 4 — which voters narrowly approved to create an independent commission to draw Utah's redistricting maps — runs afoul of the Utah Constitution by undermining individual rights to change the government.
Article I, Section 2 of the state Constitution states: "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."
The right to "alter or reform" government was a key point of focus for the justices during oral arguments in the case last week, and will now be the subject of supplemental arguments the court requested from attorneys on both sides.
The plaintiffs argued that Proposition 4 was an expression of the right to "alter or reform" government, which lawmakers ignored when they passed SB200, giving the commission an advisory role in map-drawing while affording the Legislature with the final say. Lawmakers ultimately ignored the commission's proposals and adopted maps they drew themselves.
Although the justices seemed wary of setting precedent that would shield voter initiatives from any future changes, the plaintiffs argued redistricting is a core function of reforming and altering government, which deserves more protection than initiatives that enact basic legislation, like those dealing with medical cannabis or Medicaid expansion, for example.
The Legislature has pointed out that a separate constitutional clause in Article IX, Section 1 states that "the Legislature shall divide the state into congressional, legislative and other districts accordingly." It has argued that this gives it the ultimate authority over political map.
The separate clauses in the Constitution create "a little bit of a push and pull here that the Supreme Court has got to figure out, which is who ultimately makes the decision about boundaries," said KSL NewsRadio legal analyst Greg Skordas.
If the justices side with the plaintiffs, they would then need to consider whether to reinstate power to the independent commission or find other alternatives for actually drawing the boundaries, he said.
Here is an excerpt from the supplemental briefing order written Thursday by Justice John A. Pearce, which was obtained by KSL.com:
"If the court were to conclude that a) the people's Article I, Section 2 right to alter or reform their government is a fundamental right, and b) the people exercised that right when they enacted Proposition 4:
- Should a level of scrutiny apply in determining whether SB200 violated the people's right to alter or reform their government?
- If so, what level of scrutiny should apply?
- Should the level of scrutiny vary based on the nature of the particular changes to Proposition 4 that plaintiffs challenge?"
Although the questions about the specific claim don't necessarily signal which way the court is leaning, proponents of the lawsuit expressed optimism about their claims being considered.
Katie Wright, executive director of Better Boundaries, the group that led Proposition 4 and is funding the current litigation, said the news about supplemental briefs is "heartening."
"What does this mean? It means that the justices are working to ensure that they have a thorough understanding of all the arguments and information necessary to render a final decision on this crucial claim," she said in a fundraising email. "We continue to feel cautiously optimistic as to the outcome of our case."
"We appreciate the Utah Supreme Court taking the time to review the case thoroughly," Utah Senate President Stuart Adams, R-Layton, and Utah House Speaker Brad Wilson, R-Kaysville, said in a joint statement.
The Legislature "by no means should feel defeated at all by this decision," Skordas said.
"The justices were asking questions pretty pointedly to both sides, so there's really no way of knowing which way they're headed here," he continued. "They could have dismissed the case outright and bought into the Legislature's argument. They didn't do that, so they're clearly looking at this much more closely than I think the Legislature would have hoped."
The court gave both sides until July 31 to file their supplemental briefs, but has not yet scheduled a time for further argument.
