January 25, 2024

Lt. Gov. Deidre Henderson

350 North State St., Ste. 220
P.O. Box 142325
Salt Lake City, UT 84114-2325

Re: Request to Cease Enforcement of Unconstitutional Provisions of the Utah

Election Code

Dear Lt. Gov. Henderson:

We write on behalf of Are You Listening Yet PAC (“AYLY”) and Tracie Halvorsen, who are
among the leaders of the effort to gather signatures for the Restore Utah’s Flag Initiative. See
https://www.restoreutahsflag.com/about-the-initiative/proposed-bill. Several provisions of the
Utah Election Code that regulate signature gathering for manual statewide initiatives such as
Restore Utah’s Flag are unconstitutional under article VI, section 1 of the Utah Constitution and
the First Amendment to the United States Constitution.

These provisions unduly burden Utahns’ right to initiative and some of them also
unconstitutionally abridge freedom of speech and the right to petition the government. See, e.g.,
Cook v. Bell, 2014 UT 46, ¶12 (2014). Because our clients seek to affect political change by
petition and to discuss these changes, those rights are “guarded by the First Amendment.” Meyer
v. Grant, 486 U.S. 414, 421 (1988). Each of these provisions are your responsibility to oversee
and enforce, but they must cede to the highest “federal law” and “state law relating to elections”—
the federal and state constitutions. See Utah Code Ann. § 20A-1-105(1)(c)(iii), (iv). We request
that you agree not to enforce certain provisions, proactively address other provisions, and grant an
extension to August 1, 2024 for the submission of signatures for Restore Utah’s Flag to qualify for
the November, 2024 ballot.

I. Summary

We request that you not enforce the following unconstitutional provisions of the Utah Code:

• The prohibition on paying circulators per signature gathered. § 20A-7-104(1), (2), (3)
• The badge requirements for paid signature gatherers. § 20A-7-104(4)
• The residency requirement for signature gatherers. § 20A-7-105(4)(a)(i)
• The misdemeanor charge for signing more than once to signers whose names have been
rejected as invalid. § 20A-7-213(1)(b)

Moreover, we request that you agree to proactively do the following:

 • Publicly announce the non-enforcement of the provisions above.
• Direct county clerks to accept valid signatures on packets submitted after 30 days of the
first signature but before the final deadline. Cf. § 20A-7-105(5)(a)(i), (5)(b).
• Direct County Clerks to accept valid signatures from specific packet numbers.1
• Direct all county clerks to review all packets previously rejected under the 30-day deadline
and accept any signatures that are otherwise valid.
• Direct all county clerks to provide the names of rejected signatures publicly in the same
manner as accepted signatures and disclose them as valid signatures are disclosed under §
20A-7-105(6)(a)(ii)(B) or, at a minimum, provide rejected names to the signature collector
who verified the packet.
• Extend the deadline for submissions of Restore Utah’s Flag signatures to August 1, 2024,
excepting the requirements of § 20A-7-105(5)(a)(i) and (5)(b).

These are not the only unconstitutional burdens under the law. Other provisions, such as limiting
signatures to two per page under section 20A-7-203(3), unduly burden our clients and others
bearing the costs for printing packets. See Utah Code § 20A-7-204(4)(a) (sponsors must pay for
printing of all documents that are part of initiative packets). There is no reason for this when, for
example, elsewhere the law permits independent candidates to gather up to ten signatures per page
of a signature packet for ballot access. Utah Code § 20A-9-502(1)(b). We do not ask that you
remedy the signature-per-page provision now, but to consider it as part of the “combined effect”
that, along with the other unconstitutional provisions at issue, justifies extending the deadline for
Restore Utah’s Flag.

II. First Amendment Violations

The First Amendment “undoubtedly protects” political speech related to initiative campaigns.
Initiative and Referendum Institute v. Walker, 450 F.3d 1082, 1099 (10th Cir. 2006). Utah’s
prohibition against paid petition circulators, except those paid on an hourly basis, is
unconstitutional on its face. See Citizens for Tax Reform v. Deters, 518 F.3d 375 (6th Cir. 2008);
see also Independence Institute v. Gessler, 936 F.Supp.2d 1256 (D. Colo. 2013). This is easy to
understand—reducing effective ways to pay petition circulators ensures a reduction in the numbers
of voices that will convey messages while limiting the audience size for petitioning. This all
damages our clients’ ability to qualify Restore Utah’s Flag or any other initiative for the ballot.

1
Direct the Davis County Clerk to accept valid signatures from packet number 301,065; Uintah
County Clerk to accept valid signatures from packet numbers 303,830, 303,831, 303,832; direct
the Sanpete County Clerk to accept valid signatures from packet numbers 305,241, 305,250; direct
the Salt Lake County Clerk to accept valid signatures from packet number 308,485.

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Banning non-residents from engaging in petition circulation is equally unconstitutional on its face.
Yes on Term Limits, Inc. v. Savage, 550 F3d 1023 (10th Cir. 2008). Prohibiting non-residents from
engaging in circulation raises similar problems as the state’s ban on pay-per-signature—reducing
the number of available circulators and reducing our clients’ chances of success to qualify their
petition for the ballot. Utah also includes a peculiar requirement forcing circulators to wear badges
with identification numbers and information about who is paying the signature gatherer. Like the
badge requirement in Buckley v. American Constitutional Law Foundation, Inc., 525 U.S. 182
(1999), Utah’s badge provision inhibits effective advocacy at the “heat of the moment” during
signature gathering and is unsupportable under the First Amendment. Id. at 199.

To make things even more difficult, Utah limits signatures to two per page under section 20A-7-
203(3) for initiative petitions. Yet, independent candidates may include up to ten signatures per
page on a signature packet. Utah Code § 20A-9-502(1)(b). Efforts to impose additional costs and
burdens on the initiative process are recognized First Amendment infirmities. See, e.g., Gessler,
936 F.Supp.2d at 1275; Citizens for Tax Reform v. Deters, 518 F.3d 375, 383 (6th Cir. 2008). By
limiting initiative packets to two signatures per page, Utah imposes five times the printing cost
burden for those seeking to affect change through the initiative process.

Each of these infringements taken individually warrant relief. Together, the cumulative effect of
Utah’s laws is to make petitioning to qualify for a ballot initiative nearly impossible for grassroots
organizations. See, e.g., Williams v. Rhodes, 393 U.S. 23, 34 (1968) (cumulative effect); Pisano v.
Strach, 743 F.3d 927, 933 (4th Cir. 2014) (cumulative effect). These amount to unsupportable
burdens on First Amendment rights subject to swift judicial invalidation.

III. Right to Initiative Violations

The Utah Constitution places the legislative power of the state in a bicameral legislature and in the
people. The right to initiative is a fundamental right. The provision reads, in pertinent part:

(1) The Legislative power of the State shall be vested in:

(a) a Senate and House of Representatives which shall be designated the
Legislature of the State of Utah; and
(b) the people of the State of Utah as provided in Subsection (2).
(2)
(a)(i) The legal voters of the State of Utah, in the numbers, under the
conditions, in the manner, and within the time provided by statute, may:
(A) initiate any desired legislation and cause it to be submitted to
the people for adoption upon a majority vote of those voting on the
legislation, as provided by statute[.]

Utah Const. art. VI, § 1. While the legislature may enact laws that govern “the conditions . . . the
manner, and . . . the time” that citizens engage in initiatives, the Utah Supreme Court has

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recognized that “any restriction . . . on its own, or in connection with other requirements, rise[s]
to the level of being an undue burden if legislative requirements vis-à-vis the number, manner,
condition, or time are unreasonably restrictive.” Cook, 2014 UT 46, ¶ 18. The legislature may
enact laws for the purposes of “‘deterring fraud, ensuring the efficiency of the process, [and]
ensuring a modicum of numerical support for an initiative.’ . . . ‘The legislature may not, however,
impose discriminatory restrictions on the initiative right . . . simply for the sake of making it harder
to [place an initiative on the ballot] and restricting the initiative power.’” Id. ¶25 (quoting Gallivan
v. Walker, 2002 UT 89, ¶ 53).

The restrictions we are asking you to alleviate exist for no other purpose than abridging the right
to initiative. Even under rational basis review, setting three different deadlines for signature
packets, the latest of which is more than eight months before the statewide election, fails.
Triggering a 30-day deadline for a packet after the first signer signs a petition serves no purposes
but to compound the costs that sponsors are already bearing to print the packets in the first place
(complete with extra-large boxes that ensure there are only two signatures per page, one-fifth the
number of signatures per page allotted to independent candidate petitions). The other deadlines,
the earlier of 316 days after the application is filed or February 15 (which left Restore Utah’s Flag
with a total of approximately 248 days) are no less baseless and are unreasonably restrictive.

The deadlines work with other parts of the law to amplify the undue burden on the right to petition.
In the experience of our clients and others working on Restore Utah’s Flag, certain county clerks
and their staff reject entire packets of signatures based on the 30-day deadline under § 20A-7-
105(5)(b), refuse to return the packets at issue under § 20A-7-105(10), and make no effort to
identify the names rejected within said packet. After all, the law only requires disclosing certified
names under § 20A-7-105(6)(a)(ii)(B). Non-disclosure of rejected names is the case with accepted
and rejected packets alike. Even with accepted packets, non-disclosure leaves our clients and other
supporters to cross-reference the number of rejected signatures in a given packet with the certified
names website to try and figure out who was rejected.

If that is not Kafkaesque enough, currently it would not even matter if you or a county clerk’s
office did disclose rejected signers, because Utahns are unequivocally barred under threat of
misdemeanor from knowingly signing the same initiative twice, whether their name has been
certified or not. Utah Code § 20A-7-213(1)(b). As of January 12, a total of 7,140 signers have been
rejected simply because they are not registered to vote. This should be easy to remedy: our clients
could contact them, they could renew their voter registration, and sign again. But if our clients did
that, aiding and abetting signing more than once is a crime, too. See Utah Code § 76-2-202. The
restriction here is not about deterring fraud or ensuring efficiency: it is simply about deterring the
right to initiative.

We must be absolutely clear here: as of January 12, there are 10,207 signatures that have been
rejected for reasons other than duplication (i.e., signers who signed more than once). Many of these

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could be remedied if disclosed and if signers are relieved of potential criminal charges for signing
twice. But our clients—indeed, no one—has any idea how many thousands of signatures have
been rejected on the basis of entire packets being swept aside. It is entirely possible that
Restore Utah’s Flag has already qualified for the ballot but for the state’s refusal to count
valid signatures from “late” packets. This is no less than the destruction of the right to initiative.

To be sure, having the courts fix this is a tall order. In its most recent decision addressing the right
of initiative, the Utah Supreme Court reserved a question:

[W]e have not yet had occasion to specify the manner and means by which a party
may carry its burden of establishing the nature and extent of any burden on the
initiative right. Nor have we had the opportunity to explain exactly how the degree
of any such burden is to be balanced or weighed “against the importance of the
legislative purpose” of the statutory provisions in question.

Count My Vote, Inc. v. Cox, 2019 UT 60, ¶ 46 (quoting Utah Safe to Learn-Safe to Worship Coal.,
Inc. v. State, 2004 UT 32, ¶35). But we are confident that the experience of our clients, the other
petition sponsors, signature gatherers and myriad signers of the Restore Utah’s Flag Initiative
would afford the court an ample record on which to answer this question, the remedy for which
will be no less than what we’re requesting of you now, at the outset. Only because of the extreme,
readily apparent burdens placed on the initiative process under the current law do we ask that you
exercise your independent duty to the Utah Constitution and take the actions we ask for here.

IV. Extension of Time Remedy

Finally, we request that, owing to the combined effect of these unduly burdensome provisions, that
you afford an extension for signature submissions to August 1, 2024, excepting the requirements
of Utah Code § 20A-7-105(5)(a), (5)(b). This deadline will not upset the electoral process: for
example, county clerks will have more than the 21 days they are allotted under law to verify the
final signature submissions. Utah Code § 20A-7-105(6)(a). There will be ample time to do the
final certification before ballots are printed for the election. If the initiative is successful, you will
have time to prepare and publish the voter information pamphlet. Utah Code §§ 20A-7-701, 20A-
7-702(6) (noting a deadline for statewide candidates’ statements of 5 p.m. “on the first business
day in August before the date of the election[.]”), 20A-7-702.5 (noting voter information pamphlet
may not be published online until 75 days before voting commences).

Our clients can make their case in court that these provisions, individually and by “their combined
effect”, are unduly burdensome. Cook, 2014 UT 46, ¶11. A lawsuit would not be limited to the
matters discussed here, and AYLY and Mrs. Halvorsen reserve all rights to pursue their case in
court if you do not rectify its rights to initiative and free speech.

Because time is of the essence, we request a response by close of business on February 2, 2024.

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Respectfully submitted,
Kyle F. Reeder
124 S 600 E
Salt Lake City, UT 84102
Telephone: 801-363-2999
kyle@cannonlawgroup.com
Stephen R. Klein
Barr & Klein PLLC
1629 K St. NW, Ste. 300
Washington, DC 20006
Telephone: (202) 804-6676
steve@barrklein.com
Benjamin Barr
Barr & Klein PLLC
444 N. Michigan Ave., Ste. 1200
Chicago, IL 60611
Telephone: (202) 595-4671
ben@barrklein.com