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Count My Vote, Inc. v. Cox

Supreme Court of Utah

October 10, 2019

Count My Vote, Inc., Michael O. Leavitt, and Richard McKeown, Petitioners,
Spencer J. Cox, Curtis Koch, Bryan E. Thompson, and Kim M. Hafen, Respondents.

          On Petition for Extraordinary Relief

          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.

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



         ¶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 extraordinary writ. We hold that CMV has failed to carry its burden of establishing a violation of article VI "with undisputed allegations of fact." See Carpenter v. Riverton City, 2004 UT 68, ¶ 10, 103 P.3d 127. And we deny the petition on that basis without rendering a conclusive decision on the merits of this claim.

         ¶13 The grounds for the court's disposition of CMV's statutory claim are set forth in Part II.A. below. Part II.B. presents the basis for the court's disposition of CMV's constitutional claims. Part II.C. then concludes with a discussion of additional issues; this portion of the opinion presents the views only of the author of this majority opinion.

         A. Statutory Claim

         ¶14 CMV's first claim arises under Utah Code section 20A-7-205(3)(a), the so-called "Removal Provision." CMV asks us to interpret this provision to require personal submission of the signature removal form by the voter. Such an interpretation would foreclose the need for us to address CMV's constitutional claims because the removal forms at issue were not submitted personally by voters but through Keep My Voice.

         ¶15 CMV asserts that its reading of the Removal Provision is required by the canon of constitutional avoidance, the plain text of the statute, the legislative history, and the overall purpose of the Election Code. CMV also contends that such a reading is supported by the official signature removal form issued by the lieutenant governor's office. We find none of these points persuasive.

         ¶16 We begin with the text of the statute. The governing text of the Removal Provision provides that a "voter who has signed an initiative petition may have the voter's signature removed from the petition by submitting to the county clerk a statement requesting that the voter's signature be removed." Utah Code § 20A-7-205(3)(a). CMV asks us to read a personal submission requirement into the statutory reference to a "voter." We decline to do so under the expressio unius canon-the notion that the expression of one set of terms or conditions is an implied exclusion of others. See Bagley v. Bagley, 2016 UT 48, ¶ 10, 387 P.3d 1000. And we hold that the statutory text, as informed by this canon, forecloses CMV's other arguments.

         ¶17 The Removal Provision prescribes an express restriction on the submission of removal forms. It states that the "voter may not submit a statement by email or other electronic means." Utah Code § 20A-7-205(3)(c). The implication is that voters are subject to no other restrictions. They may utilize other means of submission- including by utilizing the assistance of a third party. But personal submission (without the assistance of a third party) is not required.

          ¶18 The statutory prohibition on email strongly implies approval of the regular mail. And if regular mail is allowed, then voters can surely rely on the assistance of a third party. A letter carrier is a third party, and we see no non-arbitrary basis for distinguishing the services of a letter carrier from that of an organization like Keep My Voice.[3] We accordingly hold that CMV's position fails as a matter of plain language.

         ¶19 That conclusion forecloses CMV's other arguments. Where the statutory language is clear we have no basis for considering the canon of constitutional avoidance, see Utah Dep't of Transp. v. Carlson, 2014 UT 24, ¶ 24, 332 P.3d 900 (canon does not apply unless statute is "genuinely susceptible to two constructions" (citation omitted)), or an assertion of a general statutory "purpose" that purportedly overrides the text, see Craig v. Provo City, 2016 UT 40, ¶ 33, 389 P.3d 423 ("text must control over a general sense of legislative purpose").

         ¶20 The conclusion that CMV's view is incompatible with the plain language of the statute also obviates the need to resort to the legislative history. See In re Adoption of Baby E.Z, 2011 UT 38, ¶ 15, 266 P.3d 702 This is especially so "where it is employed to credit personal preferences of individual legislators over the duly enacted statutory text" Id. ¶ 112 (Lee, J, concurring in part and concurring in the judgment). And that is exactly what CMV seeks to do here. CMV offers single lines from the statements of Senators Liljenquist and Stephenson and Representative Wimmer. These statements are at best ambiguous. They certainly do not provide enough justification to override the clear import of the statutory text.

         ¶21 CMV also seeks to find support for its position in the language of the signature removal form issued by the lieutenant governor's office. That form states that a signatory must submit the application to the "county clerk via mail or deliver it in person." 2018 Official Removal Form, /2018%20Request%20to%20Remove%20Petition%20Signature.pdf. This may seem to support CMV's notion of a requirement of personal delivery. But we reject that view on two grounds. First, and foremost, is the fact that the lieutenant governor's form is not law. The lieutenant governor is charged with implementing the law in this field. But his interpretation of the law is not a matter meriting deference under Utah law. We have repudiated the principle of Chevron deference[4] as a matter of Utah law. See Hughes Gen. Contractors, Inc. v. Utah Labor Comm'n, 2014 UT 3, ¶ 25, 322 P.3d 712. And for that reason the lieutenant governor's view of the law, reflected in the cited form, is unhelpful to CMV's position.

         ¶22 There is also a second problem with CMV's reliance on this form. The form, in context, does not require personal submission. The next sentence after the one CMV quotes from the form states that "[t]his form cannot be sent via electronic means (such as email)." 2018 Official Removal Form, supra ¶ 21. That indicates that the "deliver it in person" reference simply illustrates an acceptable method of conveying the form to the office in hard copy; it does not foreclose the use of third-party assistance in submitting the removal form. See Olsen v. Eagle Mountain City, 2011 UT 10, ¶ 12, 248 P.3d 465 ("Our task . . . is to determine the meaning of the text given the relevant context . . . .").

         ¶23 We reject CMV's statutory claim on these grounds. We credit the plain text of the statute and hold that the Removal Provision does not require personal submission by the voter.

         B. Constitutional Claims

         ¶24 CMV also asserts a range of claims under the Utah and United States Constitutions. CMV asserts that the terms and conditions of the statutory scheme violate the Uniform Operation of Laws Clause and the Initiative Provision of the Utah Constitution. And it further contends that the challenged requirements run afoul of the Equal Protection Clause of the United States Constitution. For reasons explained in detail below, we reject each of these arguments.

         1. Equal Protection

         ¶25 CMV asserts that the Removal Provision, Utah Code § 20A-7-205(3)(a), and the Senate District Requirement, id. § 20A-7-201(2)(a), acting in tandem, violate the Equal Protection Clause of the Fourteenth Amendment. The equal protection claim arises under the United States Supreme Court's one-person, one-vote precedents, such as Moore v. Ogilvie, 394 U.S. 814 (1969), and our analysis of these cases in Gallivan v. Walker, 2002 UT 89, 54 P.3d 1069. But the present case is distinguishable from Gallivan in important respects.

         ¶26 The key issue in Gallivan was the power disparity between urban and rural voters created by the relevant statutory provisions. The Gallivan plurality stated that the "disparity in power between the registered voters in rural counties and the registered voters in urban counties under the multi-county signature requirement is constitutionally impermissible, and such invidious discrimination will not be constitutionally tolerated." 2002 UT 89, ¶ 80. Such a concern is wholly absent here. The current signature provision requires sponsors to gather signatures in twenty-six of Utah's twenty-nine senate districts. These districts, as CMV concedes, have roughly equal populations. And this equal distribution of population means that rural and urban voters are treated the same and that neither group wields disproportionate power. Thus, even assuming that application of the one-person, one-vote principle is appropriate here, there is no violation thereof. See Libertarian Party v. Bond, 764 F.2d 538, 544 (8th Cir. 1985) (signature gathering provision presented no constitutional concerns where "districts [were] virtually equal in population").

         ¶27 We reject CMV's equal protection claim on these grounds. And we conclude that the Removal Provision and the Senate District Requirement withstand such scrutiny.

         2. Uniform Operation of Laws

         ¶28 Article I, section 24 of the Utah Constitution provides that "[a]ll laws of a general nature shall have uniform operation." Historically, this Uniform Operation of Laws Clause was viewed as a "requirement of consistency in application of the law to those falling within the classifications adopted by the legislature, or in other words a prohibition on special privileges or exemptions therefrom." State v. Canton, 2013 UT 44, ¶ 34, 308 P.3d 517. At the time of the framing of the Utah Constitution, in other words, "uniform operation provisions were understood to be aimed not at legislative classification but at practical operation." Id.

         ¶29 "The modern formulation of uniform operation is different. It treats the requirement of uniform operation as a state-law counterpart to the federal Equal Protection Clause." Id. ¶ 35. Under this conception, we have applied a three-step inquiry in determining whether the classifications in a statute run afoul of the Uniform Operation of Laws Clause. Id. We have asked "(1) whether the statute creates any classifications; (2) whether the classifications impose any disparate treatment on persons similarly situated; and (3) if there is disparate treatment, whether the legislature had any reasonable objective that warrants the disparity." State v. Robinson, 2011 UT 30, ¶ 17, 254 P.3d 183 (internal quotations marks and citations omitted); see also DIRECTV v. Utah State Tax Comm'n, 2015 UT 93, ¶¶ 49-50, 364 P.3d 1036.[5]

         ¶30 The third step of this framework is triggered only if there is both a legislative classification and disparate treatment of similarly situated persons. In the absence of either a classification or disparate treatment of similarly situated persons, the Uniform Operation of Laws Clause is not implicated-there is no further scrutiny.

         ¶31 At the third step of our analysis we have asked whether a statutory classification discriminates "on the basis of a 'fundamental right'"-a conclusion that triggers heightened scrutiny. See DIRECTV, 2015 UT 93, ¶ 50; Lee v. Gaufin, 867 P.2d 572, 582-83 (Utah 1993). But such scrutiny is implicated only at the third step-it is triggered only if there is a finding of disparate treatment of similarly situated persons. See Robinson, 2011 UT 30, ¶ 17. We proceed to the third step, in other words, only if "the statute both creates classifications and imposes disparate treatment among persons similarly situated within those classifications." Id.

         ¶32 Petitioners' claim falters at the first two steps. We have previously suggested that the governing provisions of the Utah Code "do not create any classifications" among voters who are similarly situated. Utah Safe to Learn-Safe to Worship Coal., Inc. v. State, 2004 UT 32, ¶ 33, 94 P.3d 217; see also Cook v. Bell, 2014 UT 46, ¶ 31, 344 P.3d 634 (concluding that "neither the senatorial district requirement, nor the one-year requirement, created any classifications" among similarly situated voters, "but appl[y] equally to all Utah citizens" (citation and internal quotation marks omitted)). And we reinforce that conclusion here-rejecting petitioners' allegation of disparate treatment of similarly situated persons. On that basis we conclude that petitioners have failed to carry their burden of establishing a violation of the Uniform Operation of Laws Clause.

         ¶33 Petitioners challenge the Utah Code's differential treatment of initiative sponsors and initiative opponents. They note that the Code imposes certain restrictions and requirements on the former that do not extend to the latter. As petitioners indicate, initiative sponsors must hold public hearings and file an application and various reports. And sponsors face restrictions on who may gather signatures and circulate the petition. Utah Code §§ 20A-7-202, 20A-7-205.5, 20A-11-802(1). None of these restrictions apply to initiative opponents. So there is disparate treatment in some sense under the Robinson test.

         ¶34 But disparate treatment alone is insufficient to trigger uniform operation scrutiny under Robinson. The constitutional prohibition is against disparate treatment of persons who are "similarly situated." Robinson, 2011 UT 30, ¶ 17. And initiative sponsors and opponents are not similarly situated. Initiative sponsors are seeking a significant change to the status quo-the addition of a piece of proposed legislation to the ballot. By proposing an initiative, moreover, sponsors are introducing a new topic for evaluation by voters. Opponents are in a different position altogether. They do not wish to alter Utah law, but to maintain the status quo. And they are simply responding to a topic already introduced into the public sphere by the sponsors.

         ¶35 These distinctions provide ample grounds for the conclusion that sponsors and opponents are not similarly situated. The legislature could properly conclude that those who seek to maintain the status quo-and to respond to a subject introduced by proponents-need not be subject to the restrictions placed on those who open up the subject for consideration in the first place. These are rational grounds for distinguishing sponsors from opponents. And the existence of a legitimate ground that "can be reasonably imputed to the legislative body" is enough to justify the legislative distinction. See Safe to Learn, 2004 UT 32, ¶ 36.

         ¶36 In a sense the petitioners' core complaint is that the legislature has not swept more broadly in its attempt to regulate the initiative process. The concern is with the legislature's failure to regulate more extensively than it did-its decision to impose qualification requirements only on initiative sponsors, without imposing parallel requirements on opponents. But that is "not a viable, standalone basis for a uniform operation challenge." Canton, 2013 UT 44, ΒΆ 39. Because sponsors and opponents are not similarly situated, the legislature is not required to treat them identically. And the fact ...

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