Gallivan v. Walker

In Gallivan v. Walker, 2002 UT 89, 54 P.3d 1069, the Court stated that "the reserved right and power of initiative is a fundamental right under article VI, section 1 of the Utah Constitution." As the Court explained in that case: "Initiative is the power of a voter to directly legislate via exercising the right to vote. Like the right to vote generally, the initiative right guarantees participation in the political process. It is a constitutionally guaranteed right that forms an implicit part of the life of a free citizen in a free society. The initiative right encourages political dialogue and allows the general populace to have substantive and meaningful participation in enacting legislation that impacts society. It is democracy in its most direct and quintessential form." Id. Further, "the voters' right to initiative does not commence at the ballot box: The voters' right to legislate via initiative includes signing a petition to get the proposed initiative on the ballot." Id. Thus, "the right to vote on an initiative cannot exist without the voters' unfettered right to legislate through initiative, which necessarily begins with the circulating and signing process." Id. "Because the people's right to directly legislate through initiative and referenda is sacrosanct and a fundamental right, Utah courts must defend it against encroachment and maintain it inviolate." Id. In Gallivan v. Walker, the Court addressed the constitutionality of the "multi-county signature requirement," a precursor to the current Senate District Requirement. In addition to obtaining a certain number of signatures statewide, the multi-county signature requirement required sponsors of initiatives to obtain signatures from registered voters in each of at least twenty of Utah's twenty-nine counties equal to 10 percent of all the votes cast for governor during the last gubernatorial election in the respective county in which the votes for governor were cast. Utah Code Ann. 20A-7-201(2)(a) (1998). The appellants in Gallivan challenged the requirement under the uniform operation of laws provision of the Utah Constitution. See Utah Const. art. I, 24. Consequently, in declaring the provision to be unconstitutional, we applied a heightened standard of scrutiny in accordance with our established uniform operation of laws analysis. Under that analysis, a statutory provision may be unconstitutional if it creates a classification that is discriminatory; that is, if it creates a classification that "treats the members of the class or subclasses disparately." Id. If a discriminatory classification exists, the court then determines whether that classification is constitutionally permissible. Id. The level of scrutiny applied to legislative enactments under the uniform operation of laws analysis varies depending on the nature of the classification and the nature of the right at issue. See id. "Where a legislative enactment implicates a 'fundamental or critical right' or creates classifications which are 'considered impermissible or suspect in the abstract,' we apply a heightened degree of scrutiny." Id. A provision subject to this heightened degree of scrutiny will be constitutional "only if it (1) is reasonable, (2) has more than a speculative tendency to further the legislative objective and, in fact, actually and substantially furthers a valid legislative purpose, and (3) is reasonably necessary to further a legitimate legislative goal." Id. The multi-county signature requirement at issue in Gallivan was found to create a discriminatory classification because it had a disparate impact on urban and rural voters. Because this geographic distribution requirement was based on counties, which are not population based, it had the "effect of diluting the power of urban registered voters and heightening the power of rural registered voters in relation to an initiative petition," and thus allowed "voters in rural counties to wield a disproportionate amount of power in the determination of whether an initiative qualified to be placed on the ballot." Id. Consequently, because the multi-county signature requirement created a discriminatory classification and also impacted the fundamental right of initiative, we determined that the provision was subject to heightened scrutiny under our uniform operation of laws analysis. Id. Because the provision did not withstand this level of scrutiny, we declared it unconstitutional. Id.