Several high profile issues will be on the ballot this November. As a lot of people have asked for my opinion on these issues, I wanted to share some broad perspectives and some resources with you, trusting that you will study the issues thoughtfully and thoroughly and draw your own conclusions.
Here’s what follows:
(1) An overview of the types of voter questions that will appear on the ballot this November with links to the specific questions and resources to help you get informed about them.
(2) Some thoughts about the processes/pitfalls associated with each type.
(3) A brief description and some thoughts about the specific questions on the ballot.
The goal here is to provide you with what I hope is helpful information, presented in a reasonably clear and user-friendly way. If you read through all of that and find you are still confused on some of the initiative questions, no worries—you’re in good company. These represent complex and challenging questions of public policy.
What Types of Questions are on the Ballot?
There are three types: Propositions (3), a non-binding opinion question (1), and proposed Constitutional Amendments (3). I’ll explain each type below.
The best place for general information on these ballot questions can be found here: https://elections.utah.gov/2018-election-information–a site maintained by the Lieutenant Governor’s Office that describes the proposed amendment, proposition, or question, its fiscal implications, and, in most cases arguments pro and con. (Please note that these are written by proponents or opponents–not by the Lieutenant Governor’s Office or other neutral observer. As such, they should be viewed as subjective arguments by persons with a vested interest in the outcome. Still, there’s considerable value in reading both perspectives.)
How Do the Types of Questions Differ?
Ballot Propositions (also called “initiatives” or “referenda”) represent legislation through direct, rather than representative, democracy. That gives me heartburn, which is why my default position on any ballot proposition is “no.” (Basically, when in doubt, I vote “no.”) Why? Mostly because that is the way California governs, which is nothing short of a disaster. I’m only half kidding there—I love their beaches and their produce, I just hate the way they run the state. 😉 The more serious reasons are these:
- The Framers of the Constitution had a deep mistrust of direct democracy, believing that popular opinion could too easily swayed. That’s why the Constitution contains no provision for ballot propositions or other forms of direct democracy. Many state constitutions, however, were ratified during an era when there was widespread mistrust of state legislatures. Having a citizen initiative option was viewed as providing a safety valve and an insurance against corruption. A noble goal, but …
- Ballot propositions have no checks and balances. Under the Constitution (federal and state) bills undergo a rigorous vetting process. Once a bill is drafted it must be considered by House or Senate Committee, then pass the full House or Senate, then go to the other House for consideration, then go to the Governor for veto or signature.
- Ballot propositions cannot be amended. At any stage in the process outlined above, a bill can be amended, and, if amended, in many case must be reconsidered one or more times. In contrast, ballot propositions cannot be amended. They are drafted by (usually) an interest group or groups and then go direct to the voters to be ratified or rejected. If there’s a problem in the drafting, it’s baked in and cannot be fixed.
- In many instances ballot propositions reflect ideas or proposals that failed to make it through normal legislative processes, as such, they are best viewed as an end-around the normal constitutional process for enacting legislation. This year, all three propositions on the ballot represent ideas that failed, in one way or the other, to get through the normal legislative processes. Why some will claim that’s because the legislature is uninformed or corrupt, the fact is that in each instance those who’ve been elected to represent their constituents and to vet legislation–their job in our constitutional system–rejected these proposals (or similar proposals), often after extensive debate and under significant pressure from special interest groups. Those same interest groups often resort to a ballot propositions when their legislative efforts fail, which is exactly what happened here.
- Lastly, ballot propositions often have significant financial implications that cannot be addressed through ordinary means. Any bill that goes through the legislative process that has a funding component must also be funded by legislature through the appropriations process. As initiatives fall outside of that process, there’s no give and take between the initiative costs and other priorities and no clear way for the legislature to deal with the financial implications (particularly unfunded costs) associated with the initiative.
In contrast to ballot propositions, Constitutional Amendments have in all but the rarest of circumstances already gone through the legislative process: a legislator proposes an amendment, and both houses of the legislature (House and Senate) must support it by 2/3rds vote—a higher standard than the usual majority for legislative passage—before it goes to the voters.
If passed, these amendments actually change the wording or structure of Utah’s Constitution. That’s a big deal and that’s why constitutional amendments have a higher standard and go through both the legislature and a popular vote.
Unlike initiatives and constitutional amendments, Opinion Questions have no legal effect. They simply ask voters to express an opinion on a certain issue. While that opinion may, and almost certainly will, carry weight with the legislature, it doesn’t change the law on its own. A subsequent bill would be required to do that. For that reason, a close call on an opinion question—for example 53% for and 47% against—likely won’t lead to legislation. Why? Because divided public opinion does not suggest a clear policy direction. Given that, most legislators will elect to do nothing rather than risk angering roughly half of the voters.
What Questions are on the Ballot This Year?
Because the ballot propositions involve the more thorny policy questions, I’ll address them first, even though they appear last on the ballot itself.
Proposition #2 – Medical marijuana. Most people in Utah support research into marijuana and its derivatives, particularly cannabidiol (or CBD), to treat pain, seizures, and other medical conditions. In that sense, broad majorities support “medical marijuana,” a position confirmed in numerous public opinion surveys on the subject. Where they differ is on what’s meant by the term ‘medical marijuana’ and, more particularly the timing, scope, and scale of providing access to marijuana, particularly whole plant marijuana: to whom is it provided and for what reasons? For example, I strongly support research into marijuana derivatives like CBD and THC provided they are treated like other medicines—i.e., subject to testing and validation protocols and prescribed in specific doses by a treating physician. I strongly oppose the initiative, however, because I think it creates a whole host of problems and potential for abuse, including promoting widespread recreational use under the guise of “medical” marijuana. That gives me real pause as a policy maker, where I am always concerned about unintended consequences of legislation. Rather than list here detailed arguments for and against the proposition, I recommend you read the general information available on the Lieutenant Governor’s website: https://elections.utah.gov/Media/Default/2018%20Election/Issues%20on%20the%20Ballot/Proposition%202%20-%20Ballot%20Title%20and%20Impartial%20Analysis.pdf, as well as three memoranda. The first is a legal analysis of the proposition prepared by the law firm of Kirton & McConkie at the request of the Church of Jesus Christ of Latter-Day Saints. You can read it here:https://www.mormonnewsroom.org/multimedia/file/Legal-Analysis-of-Utah-Medical-Marijuana-Initiative.pdf (Note: this is a legal analysis, not a summary of the Church’s position.) Initiative proponents respond here: https://libertasutah.org/personal-freedom/a-rebuttal-of-kirton-mcconkies-analysis-of-the-utah-medical-cannabis-act/. Kirton & McConkie respond to that rebuttal in turn here:https://www.scribd.com/document/388803909/LDS-Church-s-response-to-Libertas-Institute#fullscreen&from_embed I see value in reading the legal arguments for and against to decide for yourself whether you think this proposition should become the law of the State of Utah. After all, that is how we try to resolve legal and policy debates in the United States generally and in Utah in particular: by hearing both sides of the debate make their best arguments.
Proposition #3 – Medicaid expansion. This proposition would raise the state sales tax from 4.70 to 4.85 percent to fund fully expanded Medicaid—basically to provide a government-funded insurance option for everyone below 138% of the federal poverty rate. Overview here: https://elections.utah.gov/Media/Default/2018%20Election/Issues%20on%20the%20Ballot/Proposition%203%20-%20Ballot%20Title%20and%20Impartial%20Analysis.pdf. My concerns with Proposition 3 center around cost, sustainability, and control. While raising the states sales tax should cover Utah’s portion of the expansion for at least a few years, the experience of other states who’ve fully expanded Medicaid suggest that costs will likely outstrip initial projections. If/when that happens, Medicaid, which at nearly half a billion dollars ($483,508,800) in the last fiscal year already represents the single largest expenditure out of the State’s general fund, will compete with other funding priorities like education and transportation for scarce dollars. Moreover, if the federal government unilaterally changes the match for Medicaid dollars from, say, the current 90% federal/10% state match to the more traditional 70% federal/30% state match, the costs to the State of the expansion would triple. That’s why Governor Herbert has called this expansion the “budget buster of all budget busters.” Lastly, there is nothing to suggest that the federal Medicaid program, historically designed to serve uniquely vulnerable populations like the elderly, the mentally ill, or disabled, is anything close to sustainable. To my mind, expanding Medicaid in this way is akin to loading more people onto a sinking ship. This year, the legislature passed—and I supported—a bill to close the coverage gap without significantly increasing the financial risk to the state while simultaneously retaining a much greater degree of state control. That strikes me as a much more cautious and sustainable approach.
Proposition #4 – Changes to the redistricting process. Under existing federal law, boundaries for state and federal legislative districts must equally apportion population based on the most recent federal census. In Utah, that means each house district had roughly 38,000 people and each senate district a little more than 100,000 when those boundaries were drawn based on the 2010 Census. Boundaries cannot be drawn based on racial, religious, or ethnic considerations. Boundaries can, however, reflect party affiliation and voting patterns. So, for example, Utah has in for decades divided up Salt Lake County into several different congressional districts, which has the effect of diluting the influence of Democratic voters. The reverse tends to happen in states with strong Democratic majorities. In contrast, most state legislative seats here in Utah largely track municipal lines, with adjustments as needed to balance the population between districts, which is why our district contains 100% of Centerville and Farmington plus small pieces of West Bountiful and Kaysville, additions needed to get the population of the district to around 38,000.
Better Boundaries, the group pushing this initiative, thinks that the legislature shouldn’t draw district boundaries and that an appointed commission would do a better job. You can read about the proposal here: https://elections.utah.gov/Media/Default/2018%20Election/Issues%20on%20the%20Ballot/Proposition%204%20-%20Ballot%20Title%20and%20Impartial%20Analysis.pdf Personally, I think that you can’t take politics out of the redistricting process, and the net effect of this Proposition is to take power away from Republicans and hand it to Democrats in a heavily Republican state. To see evidence of that, one need look no further than the makeup of the 7-member Commission, which guarantees that, for the foreseeable future, Republicans will control 4 of the 7 appointments and Democrats will control 3 of the 7 appointments regardless of relative party affiliation statewide.So, for example, the most recent voter registration figures for Utah (see here: https://elections.utah.gov/party-and-status) show 748,777 Republican voters and 193,159 Democratic voters. In other words, Republicans outnumber Democrats in the State 4:1—roughly the same percentages we see in the legislature. This Proposition, however, would give Democrats dramatically more say than they would have in the ordinary legislative redistricting process.
Non-Binding Opinion Question #1 – Increasing gas tax for education. The Our Schools Now effort earlier this year proposed to dramatically increase education spending by increasing both property and state sales taxes. Ultimately, proponents hammered out a compromise with the state legislature where the legislature agreed to a couple of measures that would significantly increase education spending as well as submit a non-binding opinion question to voters on raising the state gas tax to increase education spending even more. In exchange, Our Schools Now agreed to abandon their initiative. I supported that compromise. You can read about the opinion question, including arguments pro and con here: https://elections.utah.gov/2018-election-information (scroll down to find it). Personally, I think gas tax is the wrong mechanism for a couple of reasons: first, Utah already has a fairly high gas tax at 29.41 cents/gallon—higher than neighboring states of Wyoming, Colorado, New Mexico, and Arizona. Second, it represents a declining source of revenue that often falls heaviest on the poorest among us. In other words, as newer cars get more efficient and shift to alternative sources of fuel, revenue declines. Those driving older and generally less efficient cars buy more gas and, in consequence, pay a higher proportion of the taxes. I’ve consistently supported efforts to increase funding for schools—particularly the Weighted Pupil Unit (or “WPU”), a kind of per student block grant that goes to local districts and gives them maximum control over spending. Even so, I think raising the gas tax doesn’t make a lot of sense as a sustainable source of revenue for schools.
Constitutional Amendment A – Calculating out-of-state service for members of the military on active duty to determine whether they qualify for a state property tax exemption. Utah law currently allows a property tax exemption for members of the military on active duty outside the state. This amendment clarifies the way that active duty is calculated for purposes of qualifying for the tax exemption, and basically says that a person qualifies if they spend at least 200 days out of any 365 day period out of state on active duty. I support this amendment, as I believe it clarifies what was already intended.
Constitutional Amendment B – Property tax exemption for property tax leased by a governmental entity. Currently, if a political entity leases property—rather than owns it outright—that entity pays property tax as a portion of their lease payment. Proponents think it’s silly for one governmental entity to pay taxes to another governmental entity or, in some cases, to itself. Opponents think that making that property tax exempt gives entities who lease to the government an unfair advantage, though I think the relevant point is that that “advantage” only occurs if a person is leasing property to a governmental entity. If he/she stops doing so, then the advantage goes away and the lessor pays the same taxes as anyone else. I support this amendment because I agree with the idea that it makes little sense for a taxing entity to pay taxes to itself or to another taxing entity (which simply means that taxpayers pay more for the same governmental service).
Constitutional Amendment C – Special sessions of the state legislature. Currently under the State Constitution, only the Governor can call the legislature into what’s called a special session—basically a special convening of the legislature that allows us to consider and enact laws outside of the regular legislative session. When Congressman Jason Chaffetz vacated his seat earlier this year, state law was unclear about what rules would govern the selection of his replacement. Given that lack of clarity, the Governor claimed that the Lieutenant Governor had the authority, delegated to him by the State legislature, to determine the rules. The legislature contended that the Utah Constitution clearly gives authority over elections to the legislature and that, in consequence, if the rules aren’t clear, the legislature should be the constitutional actor that clarifies the rules. The legislature asked the Governor to call a special session so that it could clarify the rules, but the Governor refused, guaranteeing that the executive branch, rather than the legislative branch, would get to determine the rules for the election. In response, the legislature proposed this Constitutional Amendment, which allows the President of the State Senate and the Speaker of the House of Representatives to call a special session, under certain conditions, with a vote of 2/3 of the membership of each house. Thirty-five of the fifty U.S. States allow the legislature, in one form or another, to call a special session. If this passes, Utah would become the 36th.
In addition, the proposed Amendment requires the Governor to do one of two things if, in a given fiscal year, state expenses exceed state revenues (i.e., if the state goes into deficit spending during the course of the fiscal year and before the next legislative session convenes). In that instance, the Governor must either reduce proportionately the amount of money spent to the point that revenues equal expenses OR call the legislature into special session to address the shortfall.
I support this amendment because I think it strengthens constitutional checks and balances for either the Governor or the legislature to be able to call a special session. I also think it promotes fiscal responsibility to make the changes necessary to address the situation in which the state starts to run a budget deficit before the legislature can convene to fix it.
Whew! That’s a lot! If that makes your heard hurt, remember that the legislature considers over 800 bills each session over a seven week period(!), with many of those policy questions every bit as complex (if not more so) than the ones on the ballot this Fall. (Yes, that’s a shameless plea for sympathy.)
If you’ve made it this far, I hope you’ve found this information helpful.
If you have questions about any of this or if there’s anything I can do for you, please let me know. I am up for re-election this fall (my name will be on the ballot along with all of this), and hope I’ve earned your trust to serve for another two years. Thank you for your engagement in this process and for your support over the years.
All the best,
Rep. Tim Hawkes