10th Circuit upholds Utah intiative amendment

A Utah amendment which would impose a 2/3 majority requirement on the passage of wildlife-related initiatives has been upheld on appeal. The opinions in the case, Initiative and Referendum Institute v. Walker, split over two issues: whether the plaintiff animal advocacy groups have standing and whether the amendment violates plaintiffs' First Amendment rights. As the opinion explains, the amendment was passed after animal and wildlife advocates began organizing measures to protect cougars and bears.

The majority opinion holds that the plaintiffs have standing to sue but that the First Amendent was not violated. We continue to be perplexed by First Amendment jurisprudence, but will do our best to summarize the arguments on the merits. The court first rejected the claim that the amendment was political speech and thus subject to strict scrutinty, finding that such scrutiny has only been applied to restrictions on speech associated with the political process, not the political process itself. It further did not adopt the reasoning of Wirzburger v. Galvin, a recent First Circuit case where the plaintiffs successfully argued that the court should use intermediate scrutiny because the subject matter-specific limits on legislation implicate both speech and non-speech elements. The court argues that refusal to apply intermediate scrutiny is a vindication of "We the People," that, given the policy-like reasoning required in weighing a government's "substantial interest" in a piece of legislation, judicial scrutiny is inappropriate.

As the dissent in Initiative Referendum Institute points out, and as we have argued regarding measures in Arizona and Missouri, subject-specific supermajority requirements have their own "We the People" problem. Specifically, the passage of the Utah amendment (by less  of the voters than the supermajority which it imposes) means that future generations of advocates able to secure a majority in support of a wildlife measure may be stymied by the "dead hands of the past." Although it is heartening to believe that Utah hunters see the tide shifting against them, their success in passing this bill (by invoking "East Coast Special Interests") shows that belief might just be paranoia.

Also (5/23/06): The Salt Lake Tribune has a fine editorial which says it all: Stacked deck: Wildlife amendment is legal, but misguided.