Count My Vote, Inc. v. Cox

• Decision Date: 10 October 2019
• Docket Number: No. 20180470,20180470
• Citation: 452 P.3d 1109
• Parties: COUNT MY VOTE, INC., Michael O. Leavitt, and Richard McKeown, Petitioners, v. Spencer J. COX, Curtis Koch, Bryan E. Thompson, and Kim M. Hafen, Respondents.
• Court: Utah Supreme Court

452 P.3d 1109

COUNT MY VOTE, INC., Michael O. Leavitt, and Richard McKeown, Petitioners,

v.Spencer J. COX, Curtis Koch, Bryan E. Thompson, and Kim M. Hafen, Respondents.

No. 20180470

Supreme Court of Utah.

Filed October 10, 2019

Matthew M. Cannon, Robert P. Harrington, Salt Lake City, for petitioners

Tyler R. Green, Stanford E. Purser, Salt Lake City, for respondent Spencer J. Cox

Troy S. Rawlings, Neal C. Geddes, Michael D. Kendall, Farmington, for respondent Curtis Koch

Brock R. Belnap, Eric W. Clarke, Natalie Nelson, Saint George, for respondent Kim M. Hafen

Jeffrey R. Buhman, Paula A. Jones, Provo, for respondent Bryan E. Thompson

J. Morgan Philpot, Alpine, for intervenors Constitution Party of Utah and Keep My Voice

Associate Chief Justice Lee authored the opinion of the Court, in which Chief Justice Durrant, Justice Himonas and Judge Orme joined except as to Part II.C.

Justice Himonas filed a concurring opinion, in which Judge Orme joined.

Justice Petersen filed a dissenting opinion.

Having recused himself, Justice Pearce does not participate herein; Court of Appeals Judge Gregory K. Orme sat.

Associate Chief Justice Lee, opinion of the Court except as to Part II.C.:

¶1 This case comes to us on a petition for extraordinary writ filed by Count My Vote, Inc., Michael O. Leavitt, and Richard McKeown (collectively, CMV). The petitioners are advocates for a statewide ballot initiative called the Direct Primary Initiative. The proposed initiative would establish a direct primary election path for placement on the general election ballot for persons seeking a political party’s nomination for certain elected offices.

¶2 The petition is denied for reasons set forth below.¹ Most of this opinion represents the views of a majority of the court. The final sub-part, II.C., presents the views only of the author of this opinion.

I. BACKGROUND

¶3 The Utah Constitution protects the right of "[t]he legal voters of the State of Utah" to "initiate any desired legislation and cause it to be submitted to the people for adoption upon a majority vote of those voting on the legislation." UTAH CONST . art. VI, § 1 (2)(a). But that right is a qualified one. The constitution expressly states that the right is to initiate legislation "in the numbers, under the conditions, in the manner, and within the time provided by statute ." Id. art. VI, § 1 (2)(a)(i) (emphasis added).

¶4 The Utah Legislature has designated the numbers, conditions, manner, and time for an initiative to qualify for the ballot. By statute, a statewide initiative can qualify for placement on the ballot only if its proponents satisfy the terms and conditions set forth in Utah Code section 20A-7-201 et seq .² The applicable terms and conditions include the following:

• Initiative sponsors must hold seven public hearings in regions designated by statute. UTAH CODE § 20A-7-204.1(1)(a).

• Persons gathering signatures must be over eighteen years of age. Id. § 20A-7-205(2)(a).

• A person seeking to have an initiative placed on the ballot must obtain "legal signatures equal to 10% of the cumulative total of all votes cast by voters of this state for all candidates for President of the United States at the last regular general election at which a President of the United States was elected." Id. § 20A-7-201(2)(a).

• A person seeking to have an initiative placed on the ballot must obtain "from each of at least 26 Utah State Senate districts, legal signatures equal to 10% of the total of all votes cast in that district for all candidates for President of the United States at the last regular general election at which a President of the United States was elected." Id. (We refer to this below as the Senate District Requirement.)

• The sponsors must verify those signatures "by completing the verification printed on the last page of each initiative packet." Id. § 20A-7-205(2)(a).

• The packets must then be submitted to the county clerk for certification by "the sooner of ... 316 days after the day on which the application is filed," or "the April 15 immediately before the next regular general election immediately after the application is filed." Id. § 20A-7-206(1)(a).

• The above packets must be submitted by the county clerk to the lieutenant governor on or before May 15 of the year in which the initiative is proposed to be included on the ballot. Id. § 20A-7-206(3).

• Those who have signed an initiative petition may have their signatures removed by "submitting to the county clerk a statement requesting that the voter’s signature be removed" and providing "the name of the voter;" "the resident address at which the voter is registered to vote;" "the last four digits of the voter’s Social Security number;" "the driver license or identification card number;" and "the signature of the voter." Id. § 20A-7-205(3)(a)–(b).

• Voters seeking to have their signatures removed have until one month after the petition in support of the initiative is filed to do so. See id. § 20A-7-205(3)(d).

¶5 CMV alleges that it had satisfied the above requirements as of April 15, 2018. By that date, CMV asserts that it had held the required public hearings and had gathered all of the requisite signatures in the manner prescribed by the legislature. In all, CMV claims that it gathered over 150,000 signatures in support of the Direct Primary Initiative. And CMV alleges it gathered more than enough signatures in twenty-six of the twenty-nine state senate districts.

¶6 CMV also alleges that its attempt to qualify the Direct Primary Initiative for the ballot was thwarted by the efforts of another group known as Keep My Voice. Keep My Voice organized an opposition to the Direct Primary Initiative. It sent members door-to-door in a few select state senate districts. And it apparently persuaded a number of voters to sign statements seeking to have their signatures removed from the petition—enough voters that the Direct Primary Initiative fell below the statutory threshold in three of the twenty-six districts in which CMV had gathered votes. Keep My Voice gathered the voter statements and submitted them en masse to the lieutenant governor. And the lieutenant governor ultimately found that the petitioners had failed to satisfy the requirements of Utah Code section 20A-7-201(2)(a) and thus refused to certify the initiative for the November 2018 ballot.

¶7 CMV challenged that decision in a petition for extraordinary writ in this court. The petition challenges the lieutenant governor’s decision on both statutory and constitutional grounds. CMV contends (1) that Utah Code section 20A-7-205(3)(a) should be construed to require an individual signer to personally submit a request for removal of a signature in support of an initiative petition, and thus to foreclose the submission of such requests by a group like Keep My Voice; and (2) that the terms and conditions of Utah Code sections 20A-7-201 et seq . are unconstitutional under (a) the Equal Protection Clause of the United States Constitution, (b) the Uniform Operation of Laws Clause of the Utah Constitution, and (c) article VI, section 1 of the Utah Constitution.

¶8 The decision whether "to grant or deny a petition for extraordinary writ is discretionary." Krejci v. City of Saratoga Springs , 2013 UT 74, ¶ 10, 322 P.3d 662. In exercising our discretion, we have been sensitive to the problems associated with the issuance of a decision in circumstances involving "disputed material allegations of fact" in the absence of a "record ... to aid this court in resolving" such disputes. Carpenter v. Riverton City , 2004 UT 68, ¶ 4, 103 P.3d 127. "Because this court does not conduct evidentiary hearings (except in those rare circumstances in which reference to a special master is deemed appropriate)," we have emphasized that we are "not in a position to arrive at a legal ruling that is dependent on the resolution of disputed facts." Id.

¶9 "[T]he determination of whether this court may adjudicate a petition is not unlike a district court’s decision to grant summary judgment." Id. ¶ 5. "Where a petition is presented on uncontroverted material facts (e.g., by stipulation or unopposed affidavits), and it is otherwise appropriate for this court to exercise its jurisdiction to issue extraordinary relief, it may issue a judgment on the merits. Conversely, where a petitioner is unable to meet the requirement of an undisputed basis for issuing the relief requested, the petition generally should not be brought in this court in the first instance." Id.

II. ANALYSIS

¶10 Several of CMV’s claims raise pure questions of law. Those claims are subject to resolution on the briefing that is before us. But that is not true of all of CMV’s claims. The challenge under article VI of the Utah Constitution is more fact-intensive. For that reason we are unable to resolve it conclusively on the briefing that is before us.

¶11 We deny the petition for extraordinary writ for reasons set forth below. We reject CMV’s statutory claim on its merits—concluding that there is no bar in Utah Code section 20A-7-205(3)(a) to collective submission of signature removal requests. We also reject CMV’s equal protection and uniform operation of laws claims on their merits. We hold that the challenged provisions of the Utah Code trigger only rational basis scrutiny under the Equal Protection Clause and uphold those provisions as rational. We also conclude that they effect no disparate treatment of similarly situated persons and accordingly hold that they raise no uniform operation of laws concerns.

¶12 We also deny the petition to the extent it is rooted in a claim under article VI of the Utah Constitution. But we decline to render a conclusive ruling on the merits of the questions presented on this claim because it implicates elements of the governing legal standard that are not fully developed in our jurisprudence and it turns on disputed questions of fact. For these reasons we decline to exercise our discretion to resolve this claim on a petition for...