Why does the legislature keep changing initiatives that the people of Utah voted for?

This question comes up quite frequently, and I know the optics are not good! But there are reasons this happens, which I would like to share here on my blog.

A constituent in my district wrote during General Session with the following request:

Dear Representative Acton,

I am writing you as one of your constituents concerning Proposition 4 on gerrymandering. 

I urge you to let Proposition 4 stand. 

I encourage you to respect the constitutional right for people to pass ballot initiatives. I support the people choosing their elected representatives, and not the other way around.

I answered his email as follows:

Your email has given me an opportunity to dig into this a little more. 

This is what was on the ballot concerning gerrymandering in 2018. It is not in the form of something that can be put into the Utah Code. Prop 4 was written as a question, and it passed by a very slim margin (50.3% for and 49.7%  against) 

Ballot Subtitle: Utah Independent Redistricting Commission and Standards Act

Ballot Text: Shall a law be enacted to: create a seven-member commission to recommend redistricting plans to the Legislature that divide the state into Congressional, legislative, and state school board districts; provide for appointments to that commission: one by the Governor, three by legislative majority party leaders, and three by legislative minority party leaders; provide qualifications for commission members, including limitations on their political activity; require the Legislature to enact or reject a commission-recommended plan; and establish requirements for redistricting plans and authorize lawsuits to block implementation of a redistricting plan enacted by the Legislature that fails to conform to those requirements?

Here is what it currently says in the Utah Constitution: 

The Utah Constitution requires each redistricting process to be completed by the general session following the receipt of the census data. The Utah Constitution also provides the Utah Legislature exclusive authority to redistrict congressional, legislative, and other state district boundaries.

This is how we can amend the state constitution: 

Amending the constitution

An amendment can be proposed in either chamber of the Utah State Legislature.A two-thirds vote is necessary in the state legislature to place a proposed amendment before the state's voters.Votes on proposed amendments must take place at general elections.

The result of a ballot initiative can express the will of the people who voted for it, but it cannot amend the state Constitution, a process which actually begins in the legislature. 

The Utah Constitution does not mention marijuana or expanded Medicaid, so those initiative changes could be addressed without going through the amendment process. 

Here is the ballot wording of Prop 3 Expanded Medicaid:

Utah Proposition Number 3

2018 ballot measure

Ballot Subtitle: Utah Decides Healthcare Act

Ballot Text: Shall a law be enacted to: expand the state Medicaid health coverage program to include coverage, based on income, for previously ineligible low-income adults; maintain the following as they existed on January 1, 2017: eligibility standards, benefits, and patient costs for Medicaid and the Children’s Health Insurance Program (CHIP); and the payment rate for healthcare providers under Medicaid and CHIP; and use the tax increase described below to pay for Medicaid and CHIP? This initiative seeks to increase the current state sales tax rate by 0.15%, resulting in a 3.191% increase in the current tax rate.

And here is Prop 2 Medical Marijuana:

Utah Proposition Number 2

2018 ballot measure

Ballot Subtitle: Utah Medical Cannibis Act

Ballot Text: Shall a law be enacted to: establish a state-controlled process that allows persons with certain illnesses to acquire and use medical cannabis and, in certain limited circumstances, to grow up to six cannabis plants for personal medical use; authorize the establishment of facilities that grow, process, test, or sell medical cannabis and require those facilities to be licensed by the state; and establish state controls on those licensed facilities, including: electronic systems that track cannabis inventory and purchases; and requirements and limitations on the packaging and advertising of cannabis and on the types of products allowed?

Without those initiatives, there is no chance Utah's legislature would have expanded Medicaid to able-bodied adults or allowed medical Marijuana dispensaries. In that sense, the initiatives worked to enact those changes into law. 

Some of the people who ran the initiatives wanted them to pass into code unchanged. That doesn't happen with any bill, and every bill is better for the revision process. I just passed a bill through House committee and floor and Senate committee on its 4th Substitute! It still has two more hearings (Senate floor and Governor) before it will be done. 

Another thing I should mention is that initiatives (at least in California and in recent years in Utah and other states) are often used as wedge issues to "get out the vote." They take an issue that everyone cares about and fundamentally agrees with (Prop 2 = alleviating pain and suffering, Prop 3 = caring for the sick/healthcare, and Prop 4 = fairness) and turn it into an initiative that sounds reasonable. They do not tell you the potential problems with the idea, which would be revealed in a normal legislative process (Prop 2 = the grow-your-own provision would lead to recreational marijuana, Prop 3 = we do not have the money in the General Fund to provide healthcare for so many more people, and Prop 4 = the process is spelled out in the Constitution, which would need to be amended in order to make the proposed change.) 

So when it comes to the initiative about redistricting (which barely passed but did, nonetheless pass), it would not have been able to amend the Constitution, since amendments always begin in the legislature. It has greatly influenced the process to the point that the Legislature has agreed to fund an independent citizens' commission, whose boundaries will be available for comparison with the legislative boundaries. In fact, every Utahn will have access to the boundary software to propose their own preferred district maps. Last time we did redistricting, a citizen's map was selected.

I know it won't make anyone 100% happy. I understand that nothing is as politically messy as redistricting! But the initiative has been taken into consideration, even though redistricting is the exclusive responsibility of elected representatives.  

I suppose a case could be made to enact an initiative as is, but no one person (the person who wrote the initiative language) can stress-test an idea and all of its impacts. I've experienced this first hand with every bill I've run. I start out thinking I have a great idea and I don't want anyone to change it, but in the course of talking to all of the stakeholders involved, I soon realize it needs to be changed. Those changes affect other stakeholders. It's a difficult process, and it should be, because with any bill we are changing something so we have to vet all of the potential harms of a bill before we vote to enact it.

One good change that came out of the General Session this year was the requirement that all future initiatives have a fiscal note attached to them, just as all proposed bills do. The fiscal note tells legislators what enacting this bill will cost taxpayers. Though It may be a fantastic bill, we may decide that it isn’t worth the cost. The public will be able to weigh the cost of initiatives now when they vote for or against the initiative at the ballot box.

I hope this helps to clarify why initiatives are usually revised. The way I look at it, people voting on initiatives are voting for or against a concept. The full text of the bill is not presented on the ballot - just the concept behind it. If you like the concept, you vote yes. If not, you vote no.

Knowing the will of the people, the legislature then drafts the concept into law. and interested stakeholders, like the Department of Public Safety, will weigh in, too, suggesting changes. In the end, very few people will be 100% satisfied, least of all the bill’s original sponsor (in this case, the people behind the initiative), but we will have a bill that will pass the House and Senate and be signed into law by the governor. In that way, I guess every bill and every initiative is something of a compromise, but if you like the concept behind the bill or initiative, it is a step forward.

Another thing to think about - an initiative may receive more than 50% of the vote and pass, but it may only pass in a few counties, leaving the rest of the people who voted against it subject to “the tyranny of the majority.” We have a representative form of government to avoid this scenario. Each House member represents about 40,000 people, and each Senator about 120,000.

I hope this long explanation answers your question. Thank you for letting me clarify why this happens.

Cheryl