Originally published in Utah Policy.
A court decision last week replacing the Utah Legislature’s congressional district map with one favored by interest groups has become a source of partisan wrangling. In responding to this ruling, all branches of government need to keep a fixed focus on the key issue at the heart of this dispute: our fidelity to the Constitution.
Last week’s ruling alleged that the Utah Legislature had not properly taken into consideration partisan factors in proposing a new federal election map. But the court ultimately adopted a map that is arguably more partisan than the one approved by the legislature. The ruling has resulted in fierce debate between branches, and potential candidates jockeying for position in a new race that is understood to favor one political party.
This decision did not appear spontaneously. It follows a 2024 decision of the Utah Supreme Court which read a new requirement into the state constitution’s provision regarding legislative authority. The supreme court determined that if the legislature amends or repeals a law enacted through a ballot initiative, the courts would have to determine if the legislature’s actions were consistent with the “subjective intention” of the initiative’s proponents, rather than the plain text. This means in part that a ballot initiative becomes the functional equivalent of a constitutional amendment despite not following the constitution’s amendment process.
It also put the courts in the position of interpreting these laws without a fixed legal standard. The new intentionality standard allows the courts to invoke the unwritten “spirit” of a law without regard to any textual support either for the court’s authority or its interpretation of a specific law.
These decisions raise foundational constitutional concerns.
The most obvious relates to the separation of powers. The Utah Constitution is clear that the Legislature has the duty to divide the state into electoral districts. A court decision adopting a map not drawn by the legislature is clearly at odds with this provision.
Another, related, concern is about the nature of a written constitution. The 2024 decision replaced adherence to the meaning of constitutional text with extraneous considerations.
Unfortunately, these critical concerns could get lost in distractions. One possible distraction is discussion about impeaching the judge who issued the most recent decision. Absent a showing of some other misconduct (“high crimes, misdemeanors, or malfeasance in office”), that judge’s decision was constrained by the Utah Supreme Court’s novel constitutional interpretation. The latter is where the primary response should be directed.
Too much attention to the trial judge could distract from the more essential question of how the state’s judges should approach their constitutional duties. Utah judges need to ensure that their interpretations of constitutional provisions are consistent with the fixed meaning of those provisions as conveyed to the ratifiers by the language of the constitution. This approach best protects the representativeness of government and the integrity of a written constitution. The approach of looking at unwritten subjective intent is hard to square with this.
In addition to the court’s responsibility to measure its rulings by appropriate constitutional standards, the governor needs to nominate judges committed to these standards and the legislature needs to ensure that those who are nominated are truly committed before they are confirmed.
There will be plenty of time to deal with the partisan fallout from this decision (and to bemoan the reality that the decision has enmeshed the courts in partisan considerations). That is an appropriate and necessary task for lawmakers and citizens. The more pressing need for lawmakers, executive officials, and judges is to lock in on the task of ensuring that critical constitutional considerations are not lost in the process.
