Once the final gavel of Utah’s 45-day legislative session falls each March, Utah’s chief executive gets a 20-day window to exercise the power of the veto.
In his first State of the State speech, Gov. Spencer Cox told lawmakers he’d likely veto more bills than his predecessors. Now Utahns wait to see which ones.
Rep. Paul Ray’s HB 294 — which lifts the state’s mask mandate on April 10 — would be a waste of a gubernatorial veto. During his press conference Thursday, Cox explained why.
“We believed it made sense to get enough vaccines to administer to all adults who wanted those vaccines before portions of the mask mandate went away,” Cox said. “The Legislature disagreed with that, which they are entitled to do. And they were able to pass a bill with a significant veto-proof majority.”
But Gov. Cox said he managed to buy Utahns some time.
“In our negotiations we came up with the best we could do,” Cox said. “Every day, 25,000 new people get vaccinated and get closer to that immunity and that herd immunity that we’re working toward, so (we told them) we’ll take as many days as you can give us. We ended up with April 10.”
But Cox noted that the mask mandate would remain in effect for schools and gatherings of more than 50 people. He also urged businesses and individuals to act responsibly in light of their relative risk.
“If you are not comfortable, if you are at risk, if you have not been vaccinated, then take precautions. Still socially distance, physically distance. Wear masks, wear better masks, wear double masks,” Cox said, adding that “Businesses can and should still require masks … to protect their workers and customers. There’s nothing at all that prevents businesses from doing that.”
Right to petition
While Rep. Jordan Teuscher’s bill to increase requirements for citizen-led initiatives and referenda is also unlikely to draw a Cox veto, some initiative proponents see it as a magnet for litigation.
Teuscher’s HB 136 requires that paid signature gatherers wear detailed badges and get paid by the hour rather than by the signature. It also requires the signature gatherer to offer the signer a printed or digital copy of the initiative or referendum and then wait while they read it. The signer can decline the document, but the gatherer at least has to offer — or risk being charged with a class B misdemeanor.
Before delivering packets to the county clerk, the initiative or referendum sponsor must notify each signer who included their email address in the signed signature packet. The email message tells the signer how to access an online copy of the measure.
Anyone who signs a petition with someone else’s name or knowingly signs more than once could be charged with a class A misdemeanor.
Noah Rosenberg, executive director of Better Boundaries, weighed in on Utah’s initiative and referendum process. His organization sponsored the successful passage of Proposition 4 in 2018 to establish an independent advisory redistricting committee that would help redraw the state’s legislative and congressional districts.
In March 2020, the Legislature passed compromise legislation that could render that advisory effort moot depending on how much weight lawmakers give it.
“We are widely regarded as already being the hardest, the most difficult state to qualify an initiative in,” Rosenberg said. “In part, that’s because we have a very high number of signatures you need to gather (10 percent of active voters).”
In addition, that minimum signature threshold must be met in 26 of Utah’s 29 senate districts.
“You have to gather over almost the entire state, which makes the process more laborious, more difficult to organize, more expensive if you’re going to hire an outside firm,” Rosenberg said.
But because the state constitution guarantees the right of citizens to petition by drafting legislation through the initiative process, Rosenberg suggested that the Legislature might have finally gone too far in its zeal to curtail citizen lawmaking.
“This bill probably veers into territory that opens the Legislature up to a court challenge,” Rosenberg said. “If they make it so difficult, the state Supreme Court can actually come in and say you’ve gone too far … by making it so difficult you have functionally eliminated the Constitutional right to initiatives and referenda.”
Rosenberg noted that their signature gatherers already did much of what Teuscher’s bill prescribes. They got paid by the hour “as a disincentive for fraud.” They also confirmed that people read the entire text of the initiative before signing, and they mailed notices to signers after the measure qualified for the ballot to remind them to vote.
“The reality is that voters and the Legislature often have genuine policy disagreements. I think what the Legislature was looking for here was to make sure folks were informed,” Rosenberg said. But he rejects the notion that people don’t understand or care enough to understand.
Taylor Morgan worked for the state Elections Office before leaving in 2013 to help drive the Count My Vote initiative that appeared poised to make it on the 2014 ballot. That measure would have traded Utah’s caucus/convention system for a mandatory primary where voters would decide which candidates make it on the November ballot.
After gathering enough signatures to qualify for the ballot, opponents convinced a small group of signers in two counties to remove their names, thus derailing the Count My Vote effort.
Legislators also crafted a compromise with SB54 that allowed two paths to the primary: the caucus/convention process or candidates gathering enough signatures to get a spot on the primary ballot.
Litigation ensued and the matter ultimately reached the Utah Supreme Court, which ruled in August 2018 that Count My Vote would not appear on November’s ballot. And the Utah Republican Party continued to battle in court to overturn SB54. The party’s main argument centered on their constitutional right of association.
With all that whiplash from the past, Morgan views Teuscher’s initiative and referendum bill as “incredibly problematic.”
“HB 136 takes that difficulty into the realm of unconstitutionality by dictating terms of signature gathering in a way that really interferes in the private marketplace,” Morgan said. “It tells signature-gathering companies … that they cannot choose how they want to pay their employees.”
Unlike Rosenberg, Morgan said they paid for each valid signature, “so there’s no incentive to fake signatures because county clerks have to verify those signatures.” But to pay by the hour instead would double the cost of getting enough signatures to qualify for the ballot, Morgan added.
But Morgan also believes Teuscher’s bill goes too far.
“Utah’s initiative and referendum process has progressively become more and more difficult over the last decade,” Morgan said. “And here, I believe that the Legislature has overstepped, and this has now gone beyond the pale and into the realm of infringing on the citizens right to petition.”
Litmus test?
Teuscher sponsored another successful piece of legislation, HB 197, that establishes March 31 as the date in even-numbered years by which voters must change their party affiliation in order to vote in the closed Republican primary in June.
Weber County Clerk Ricky Hatch, who chairs the Clerks Legislative Committee for the Utah Association of Counties, said Teuscher sought their input on both HB 136 and HB 197.
“As clerks we certainly want to keep an eye out for the voter and we also need to make sure that it doesn’t place an undue burden on counties from an administrative standpoint,” Hatch said. “HB 136 doesn’t impact clerks very much.”
Hatch noted clerks’ support for paying gatherers by the hour rather than the signature due to some fraud they detected in Weber County in 2018.
“So we were neutral on HB136,” he said.
However, the clerks “strongly opposed” HB 197 in its original form, which set the deadline for switching party affiliation as Jan. 1.
“We have serious concerns about voters not being able to change for six months leading up to an election,” Hatch said, referring to June primaries held in even-numbered years.
The March 31 deadline actually works to their advantage, Hatch added, due to costs associated with mailing out a different ballot to voters who decide to switch party affiliations at the last minute.
But county clerks still had qualms about setting such a deadline, even at the end of March.
“Some clerks felt it was important to keep the option for voters open. Some felt strongly that we should lock it down right after we mail out ballots,” Hatch said, to “be more fiscally conservative and require voters to take some personal responsibility. But some voters genuinely have a change in opinion, and we all had concerns about restricting that ability.”
Their stance changed to “neutral” with the bill’s March 31 deadline.
As Morgan sees it, more voter participation in a primary is better.
“I consider myself a big tent Republican. I believe that winning elections is based on math,” Morgan said, “and having more voters affiliate with your party and voting for your party’s candidates is a good thing, not a bad thing.”
Morgan touted Utah’s elections as the envy of the nation because they’re “incredibly well run.” In that respect, he said the Utah Republican Party has the opportunity to lead the rest of the country.
But Utah’s GOP is conflicted, he added.
“This is the ongoing dynamic between the party insiders — the state central committee and state & county delegates vs. the rank and file everyday Republican voter,” Morgan said. “I would hope they start to worry less about who gets to be in their club, and worry more about how they embrace all the party voters to move the party forward and win elections.”
Rosenberg took offense at the notion that people who affiliated with the GOP to vote in the party’s Primary were somehow “phony Republicans.”
“At the end of the day, when you take local control to its logical conclusion, isn’t the only person that can actually decide whether someone is a real or valid Republican the person who’s changing their party affiliation?” Rosenberg said.
Teuscher’s conflict of interest disclosure form lists the Church of Jesus Christ of Latter-day Saints as his current employer, and his job is to review and negotiate strategic contracts for the Church.
Vetoes rare
Rich McKeown, chief of staff to former three-term Gov. Mike Leavitt — and years later as a leader in the Count My Vote movement alongside Leavitt — said the increase in ballot initiatives over the past decade likely led to this year’s legislative action.
“If you look at the prior legislative sessions where they reviewed initiatives for redistricting, marijuana and medicaid, and we also had an (earlier) initiative on Count My Vote, my suspicion is that they looked at that and determined that this was the time to increase standards,” McKeown said. “They’ve shown a willingness to disregard initiatives anyway.”
And while HB 136 and HB 197 might be pushing constitutional limits, McKeown figured Cox will use his veto pen elsewhere.
“Gov. Cox is most knowledgeable about elections, but my guess is he won’t veto these,” McKeown said.
But McKeown — known for collaboration more than confrontation — believes that signature gathering should be preserved, and that Utah’s GOP should consider opening its primary to unaffiliated voters.
And perhaps there are ways to get there.
“Gov. Leavitt would often bring people together to say there’s a problem with this bill, I can’t sign it, but there’s an objective here that I understand, let’s figure out a way to accomplish this,” McKeown said. “He would bring people together to figure out ways to solve the problem. I suspect that Gov. Cox has that same mentality.”
