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Guest opinion: Utah Supreme Court hears arguments on gerrymandering

By Kathy Adams - Special to the Daily Herald | Jul 18, 2023

Courtesy photo

Kathy Adams

The rows of bench seats resembling church pews were filled Tuesday (July 11, 2023) at the Matheson Courthouse with concerned citizens, media and lawyers, lots of lawyers — law students, law partners, retired judges, lawyers representing the state and the plaintiffs. In the front of the room sat the five justices that make up Utah’s Supreme Court.

The issue of such great interest to Utah’s legal community was how Utah’s Supreme Court would rule after hearing arguments in a challenge of Utah’s congressional districts, drawn by the majority-Republican Legislature. It will be months before the decision is announced but its impact will be felt by citizens whose votes have been diluted by the redistricting process.

This case seeks to answer: if redistricting is solely in the hands of the Legislature; if courts even have a role in the dispute; and if the Legislature has the authority to revoke an initiative passed by a majority of the people.

However, even if the Supreme Court rules in favor of the plaintiffs, the redistricting case isn’t over; in fact, it will have just cleared the first hurdle. It would confirm that state courts do have the authority to weigh in on the constitutionality of redistricting, giving the Campaign Legal Center its day in court.

Attorney Mark Garber presented oral arguments for Campaign Legal Center representing the League of Women Voters, Mormon Women for Ethical Government and a number of Utah residents in their claim that the state purposefully gerrymandered Utah’s voting districts.

Tuesday’s court proceeding was the most respectful, fair-minded and logic-based exercise in government I have ever experienced in Utah. I have attended committee and public hearings that are usually dominated by members of the Republican Legislature and the outcome is frustratingly predetermined.

On Thursday (July 14), two days after the hearing, the Supreme Court asked for further information — a supplemental briefing on the Proposition 4 claim (that the repeal was unconstitutional), which is a good sign that the justices are working to render a fair and informed decision.

The case is complicated, and I would encourage people to read Robert Gehrke’s analysis in the Salt Lake Tribune. Or, read the transcript and watch the YouTube of the hearing, because the case involves a depth of Utah law and history that is worth knowing.

One of the most compelling and longest line of questioning on Tuesday was parsing the meaning of two words in the Utah Constitution, “the legislature.” There is an agreement that it means both the legislative body and the citizens combined, even though the state continued to hold that in this instance, for some reason, the two words leave out the public and only mean the elected members of the state Legislature.

At least four of the five justices drilled down pretty hard on the state (attorney Taylor Meehan), asking what remedies are left for citizens when a statewide referendum is passed by a majority of voters yet can simply be ignored by the Legislature. The state’s answers were not satisfying. The state contends that citizens can either elect different leaders, lobby or contact their representative.

If the Utah Supreme Court has the wherewithal to stand up to our two-thirds majority Republican Legislature, it still might not be enough to give citizens a say in their own government, because the Utah State Leg has already begun dismantling the co-equal powers of government. Legislators in other states are giving themselves the power to override court decisions.

This is less threatening in states such as New Hampshire or Arizona, which have equal representation in their government. But Utah’s Republican trifecta — Republican governorship and a two-thirds supermajority in both the House and Senate — makes Utah’s need for a strong judiciary especially important.

Utah state Rep. Brady Brammer’s bill HJR 2 reads like a battle plan to undermine the role and independence of Utah’s judicial system. Utah House Joint Resolution 2 (HJR 2) represents the effort of one branch, the Legislature, to try to take power away from another branch, the judicial branch, whose role is to ensure the Legislature does not pass laws that violate the rights of Utah citizens.

Additionally, Republican Utah Sen. Kirk Cullimore is doing his best to undo the vetting process currently in place for Utah judges in hopes of importing Federalist Society judges from out of state.

This plan to circumvent the judicial system is not ordinary partisan politics. It is a great responsibility to be a state legislator, especially in a state that carves up the districts to guarantee you can’t lose. The state should admit that it isn’t some moral high ground giving them a win — they’re just moving the goalpost to keep a super majority.

Kathy Adams was the dance writer at the Salt Lake Tribune (2002-2019) and has written about dance for Salt Lake Magazine, Dance Magazine, Dance Teacher Magazine and more.


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