Cook v. Bell, 344 P.3d 634

Background

In 2011 the Utah Legislature enacted S.B. 165, amending local initiative rules: (1) signature threshold based on 10% of votes in the most recent presidential election (replacing prior reference to gubernatorial votes) and (2) a time limit requiring signatures by the sooner of 816 days after application or the April 15 before the next general election.
Plaintiffs (initiative proponents of a Salt Lake County “Lawful Employment Ordinance” requiring E-Verify) attempted to qualify for the 2012 ballot but failed to collect sufficient signatures and sued the Lieutenant Governor and County Clerk.
Plaintiffs challenged the 2011 amendments as violating: (a) the Utah Constitution’s initiative right (Art. VI, §1), (b) Utah’s uniform operation of laws clause (Art. I, §24), and (c) the First Amendment free-speech right.
The district court granted summary judgment for the State; the Utah Supreme Court reviewed constitutionality de novo.
The Court held the amendments did not unduly burden the initiative right, did not violate uniform operation, and did not infringe First Amendment protections; the district court judgment was affirmed.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether S.B. 165 unduly burdens the Utah constitutional right to initiative	The presidential-vote signature formula and shortened deadline increased required signatures and reduced time, effectively preventing access to the ballot	Legislature may regulate "numbers, conditions, manner, time"; restrictions are permissible unless unduly burdensome and serve legitimate purposes	Not unduly burdensome; requirements fall within legislative authority and are reasonable in purpose and effect
Whether the amendments violate uniform operation of laws (Art. I, §24)	New rules disadvantage volunteer, unfunded campaigns vs. paid signature gatherers, creating a de facto disparate classification	Rules apply uniformly to all proponents and do not create a suspect or constitutionally significant classification	No violation; statute operates uniformly on its face and in practice
Whether the amendments violate the First Amendment	Limits on ballot access impede core political expression tied to the initiative and merit strict scrutiny	Regulations govern the initiative process (procedural), not speech; proponents remain free to communicate their message	No violation; First Amendment protects speech but not a guaranteed right to ballot access or political success
Whether court should apply heightened review of legislative judgments over initiative regulation (concurrence)	N/A (concurrence argues for different standard)	Defer to legislature unless regulation forecloses any meaningful possibility of exercising the initiative right	Majority applies ‘‘undue burden / reasonableness’’ balancing; concurrence would apply greater deference, intervening only where regulation eliminates meaningful access

Key Cases Cited

Gallivan v. Walker, 54 P.3d 1069 (Utah 2002) (recognizes initiative as a fundamental but regulable right; prohibits undue burdens)
Utah Safe to Learn–Safe to Worship Coal., Inc. v. State, 94 P.3d 217 (Utah 2004) (establishes reasonableness/legitimate-purpose balancing for initiative regulations)
Initiative & Referendum Inst. v. Jaeger, 241 F.3d 614 (8th Cir. 2001) (upholds certain manner-of-circulation restrictions)
Am. Constitutional Law Found., Inc. v. Meyer, 120 F.3d 1092 (10th Cir. 1997) (permissible regulations: age requirements, affidavits, etc.)
PEST Comm. v. Miller, 626 F.3d 1097 (9th Cir. 2010) (upholding single-subject and description/title requirements)
Campbell v. Buckley, 203 F.3d 738 (10th Cir. 2000) (title/subject requirements upheld)
Initiative & Referendum Inst. v. Walker, 450 F.3d 1082 (10th Cir. 2006) (distinguishes process regulation from speech regulation; First Amendment protects advocacy, not guaranteed ballot access)
Save Palisade Fruitlands v. Todd, 279 F.3d 1204 (10th Cir. 2002) (same distinction between initiative procedure and speech regulation)
Skrzypczak v. Kauger, 92 F.3d 1050 (10th Cir. 1996) (removal from ballot does not prevent advocacy on the subject)
Republican Party of N.C. v. Martin, 980 F.2d 943 (4th Cir. 1993) (First Amendment does not guarantee political success)