Count My Vote, Inc., Michael O. Leavitt, and Richard McKeown, Petitioners,
Spencer J. Cox, Curtis Koch, Bryan E. Thompson, and Kim M. Hafen, Respondents.
Petition for Extraordinary Relief
Matthew M. Cannon, Robert P. Harrington, Salt Lake City, for
R. Green, Stanford E. Purser, Salt Lake City, for respondent
Spencer J. Cox
S. Rawlings, Neal C. Geddes, Michael D. Kendall, Farmington,
for respondent Curtis Koch
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
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.
recused himself, Justice Pearce does not participate herein;
Court of Appeals Judge Gregory K. Orme sat.
ASSOCIATE CHIEF JUSTICE
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.
The petition is denied for reasons set forth
below. 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.
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).
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. The applicable terms and conditions
include the following:
• Initiative sponsors must hold seven public hearings in
regions designated by statute. Utah Code §
• 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. §
• 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. §
• 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. §
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.
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
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
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.
"[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
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
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.
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.
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
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.
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.
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.
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. We accordingly hold that CMV's
position fails as a matter of plain language.
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
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.
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
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 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.
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 . . . .").
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
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.
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.
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").
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.
Uniform Operation of Laws
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
"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.
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.
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."
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.
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.
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.
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.
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, ¶ 39. Because sponsors and
opponents are not similarly situated, the legislature is not
required to treat them identically. And the fact ...