Are You Listening Yet PAC v. Henderson

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ARE YOU LISTENING YET PAC and TRACIE HALVORSEN, Plaintiffs, v. DEIDRE HENDERSON, Lieutenant Governor of the State of Utah, in her official capacity, Defendant.

No. 2:24-CV-00104-JNP

United States District Court, D. Utah

March 11, 2024

MEMORANDUM DECISION AND ORDER DENYING MOTION FOR EXPEDITED PRELIMINARY INJUNCTION

Jill N. Parrish United States District Court Judge

In 2023, the Utah Legislature adopted a new state flag and designated the prior flag as the state's official “historic state flag.” Utah Code Ann §§ 63G-1-501 and 63G-1-503(1). In response, the Are You Listening Yet PAC (“PAC”) and Tracie Halvorsen (“Ms. Halvorsen”) (collectively “Plaintiffs”) submitted an application to present the Restoring the Utah State Flag initiative (the “Initiative”) to Utah voters, hoping to thereby restore the prior state flag. But Plaintiffs did not gather enough signatures for their Initiative to qualify for the ballot. Now, Plaintiffs seek an expedited preliminary injunction from this court, declaring several provisions related to the initiative process violative of the First Amendment to the United States Constitution and providing Plaintiffs additional time to gather signatures in support of their Initiative. Defendant Deidre Henderson (the “State,” the “Lieutenant Governor,” or “Defendant”), opposes Plaintiffs' motion. For the reasons set forth herein, Plaintiffs' motion is DENIED.

FINDINGS OF FACT

The Utah State Flag

1. For over one hundred years, the Utah state flag has prominently featured the Seal of Utah

in its design. ECF No. 1, ¶ 9.

2. In 2023, the Utah Legislature enacted S.B. 31, State Flag Amendments, codified in Utah Code § 63G-1-501 et seq. ECF No. 26-1, ¶ 3.

3. S.B 31 established a new state flag of Utah and designated the prior flag as the state's official “historic state flag.” ECF No. 26-1, ¶ 4. S.B. 31 took effect on March 9, 2024.

4. The Utah Legislature's adoption of a new state flag garnered signature public attention and debate in the Spring of 2023.

The Parties

5. The PAC is a political action committee formed under the Utah Election Code that raises contributions and expends money in support of the Initiative, including by financing the printing of petition packets. ECF No. 1, ¶ 3.

6. Ms Halvorsen is the main sponsor of the Initiative, the PAC's primary officer, and a resident of Riverton, Utah. ECF No. 1, ¶ 4.

7. The Lieutenant Governor is charged with the responsibility to “enforce compliance by election officers with all legal requirements relating to elections, including . . . all applicable provisions of federal law and rule relating to elections[.]” Utah Code § 20A-1-105(1)(c)(iii).

The Initiative

8. Ms Halvorsen and the PAC “share a deep concern” that the State Legislature's adoption of S.B. 31 is “really [an] effort[] to erase history and eliminate symbols of shared values in civil society.” ECF No. 1, ¶ 10.

9. Due to their concerns regarding S.B. 31, Ms. Halvorsen and others filed an application with the Lieutenant Governor's Office on May 2, 2023 to sponsor the Initiative, which would repeal S.B. 31, provide for one Utah flag, provide that all future adoptions of a new state flag must be submitted to the voters of the state, and provide that all future modification of the state flag and expenditures made in modifying the state flag be submitted to the voters. ECF No. 26-1, ¶ 1.

10. The Lieutenant Governor's Office approved the signature packets for the Initiative on June 12, 2024, upon which date Plaintiffs could begin gathering signatures. ECF Nos. 1, ¶ 12; 1-1, at 2.

11. Pursuant to Utah Code § 20A-7-105(5)(a)(i)(C), the Initiative's sponsors had a February 15, 2024 deadline to submit signatures in an amount equal to 8% of the number of active voters in the state as of January 1, 2023 and equal to 8% of the number of active voters in at least 26 Utah State Senate Districts as of the same date. Id., ¶ 12.

12. On February 15, 2024, the Initiative's sponsors had submitted 99,125 total signatures, 13,110 of which were determined to be invalid under Utah Code § 20A-1-1002. Id.

13. The Initiative's sponsors fell over 50,000 signatures short of the number required to qualify to place the Initiative on the 2024 General Election ballot. Id.

14. Despite falling short of their signature gathering requirement, Ms. Halvorsen and other sponsors of the Initiative “would like to continue” their signature gathering efforts “into the spring and summer when the weather is more hospitable and when more people are out in public.” ECF No. 1, ¶ 21.

15. In continuing their signature gathering efforts, Ms. Halvorsen and the other sponsors of the Initiative “would engage with professional signature gatherers that charge per valid signature collected or at a fixed price[,]” including some “professional signature gatherers who are not residents of Utah.” ECF No. 1, ¶¶ 23-24.

16. The Initiative sponsors have neither paid a petition circulator in a manner violative of the Utah Code nor alleged that they would have done so prior to the February 15 deadline if such conduct had not been prohibited.

17. The Initiative sponsors have neither received petition circulation services from any individuals who were not residents of the State of Utah nor alleged that they would have done so prior to the February 15 deadline if such conduct had not been prohibited in the Utah Code.

The State of Utah's Election Administration Process

18. Plaintiffs sought ballot access for the General Election that will be held on November 5, 2024.

19. In order to meet its obligations under the federal Uniformed and Overseas Citizens Absentee Voting Act (“UOCAVA”), the State is required to finalize ballots for the November 2024 elections at least 5 days prior to the election date. 52 U.S.C. § 20302(a)(8)(A).

20. The State works with third-party vendors who assist in the ballot production and distribution process. The State's contracts with these vendors require the State to finalize ballots a month prior to the deadline set in UOCAVA. The State must therefore finalize ballots by no later than August 2024.

21. The State believes that it is necessary to make initial determination regarding ballot access at least four months prior to its August deadline for finalizing ballots in order to provide adequate time for legal challenges to be brought against those ballot access determinations.

22. In the summer prior to an election, the Utah Code requires the Lieutenant Governor to draft a short title and summary of the Initiative by June 27, while providing the initiative sponsor an opportunity to object to that summary by July 6, prior to the Lieutenant Governor's certification of the short title and summary to the state's county clerks and prior to the printing of any ballots. Utah Code § 20A-7-209.

23. The Utah Code also requires the Lieutenant Governor to compile a voter information pamphlet in anticipation of an election to inform citizens about issues on the ballot. Utah Code § 20A-7-702.5.

Plaintiffs' Claims and Requested Relief

24. Plaintiffs challenge nine provisions of the Utah Code and seek injunctive relief with respect to a tenth statutory provision.

25. Plaintiffs challenge three statutory deadlines for initiatives.

26. First, Plaintiffs challenge Utah Code § 20A-7-105(5)(a)(i)(C) (the “February 15 Deadline Provision”), which requires signature gathering to end by no later than “the February 15 immediately before the next regular general election[.]”

27. Plaintiffs request an injunction excepting the February 15 Deadline Provision and extending the deadline for the Initiative to July 8, 2024 and a declaration that the February 15 Deadline Provision is unconstitutional.

28. Second, Plaintiffs challenge Utah Code § 20A-7-105(5)(a)(i)(A) (the “30-Day Deadline Provision”), which requires an initiative's sponsors to submit each signed and verified signature packet to the local county clerk by no later than “30 days after the day on which the first individual signs the initiative packet[.]”

29. Plaintiffs request a preliminary injunction against the enforcement of the 30-Day Deadline Provision, an order to the State to order all county clerks to accept valid signatures on packets submitted after the 30-Day Deadline Provision's termination but before July 8 2024, a declaration that the 30-Day Deadline Provision is unconstitutional, and an order directing the State to order all county clerks to review already rejected Initiative signature packets to accept any signatures rejected as a result of the 30-Day Deadline Provision.

30. Third, Plaintiffs challenge Utah Code § 20A-7-105(5)(a)(i)(B) (the “316-Day Deadline Provision”), which establishes that signature gathering may not continue for more than “316 days after the day on which the application for the initiative petition is filed[,]” except that an initiative's sponsors cannot gather signatures for the full 316 days if that period would extend beyond the deadline established by the February 15 Deadline Provision.

31. Plaintiffs request an injunction against the enforcement of the 316-Day Deadline Provision, a declaration that the 316-Day Deadline Provision is unconstitutional, and an order directing the State to order all county clerks to review Initiative signatures packets submitted between the 316-Day Deadline Provision's March 13, 2024 cutoff and July 8, 2024.

32. Plaintiffs challenge two statutory provisions that establish formatting requirements for initiative signature packets.

33. First, Plaintiffs challenge Utah Code § 20A-7-203(3) (the “Two Signatures Per Page Provision”), which requires initiative packets to be formatted to accommodate exactly two signatures per page in each signature packet.

34. Pla...