This motion requires you to

respond. Please see the Notice

to Responding Party.

John L. Fellows (4212) - [email protected]

Eric N. Weeks (7340) - [email protected]
Thomas R. Vaughn (10340) - [email protected]
Michael Curtis (15115) - [email protected]
OFFICE OF LEGISLATIVE RESEARCH AND GENERAL COUNSEL
Utah State Capitol Complex, House Building, Suite W210
Salt Lake City, UT 84114-5210
Telephone: 801-538-1032

Counsel for Legislative Defendants

IN THE THIRD JUDICIAL DISTRICT COURT,

IN AND FOR SALT LAKE COUNTY, STATE OF UTAH

LEAGUE OF WOMEN VOTERS OF

UTAH, MORMON WOMEN FOR
ETHICAL GOVERNMENT, STEFANIE
CONDIE, MALCOLM REID, VICTORIA
REID, WENDY MARTIN, ELEANOR
SUNDWALL, JACK MARKMAN, and LEGISLATIVE DEFENDANTS’
DALE COX, MOTION TO DISMISS AND
MEMORANDUM IN SUPPORT
Plaintiffs,

v.
Case No: 220901712
UTAH STATE LEGISLATURE; UTAH
LEGISLATIVE REDISTRICTING
COMMITTEE; SENATOR SCOTT
SANDALL, in his official capacity; Honorable Dianna Gibson
REPRESENTATIVE BRAD WILSON, in his
official capacity; SENATOR J. STUART
ADAMS, in his official capacity; and
LIEUTENANT GOVERNOR DEIDRE
HENDERSON, in her official capacity,

Defendants.
 TABLE OF CONTENTS
SUMMARY OF RELIEF REQUESTED AND GROUNDS FOR RELIEF ........................... 1
FACTUAL BACKGROUND AND RULE 12(b) STANDARD ................................................ 3
ARGUMENT................................................................................................................................. 5
I. THE COURT LACKS JURISDICTION OVER PLAINTIFFS’ CLAIMS THAT
PRESENT NONJUSTICIABLE POLITICAL QUESTIONS. ................................................... 5
A. The Utah Constitution places the authority and discretion for redistricting solely with the
Legislature. ............................................................................................................................... 6
B. There are no judicially discoverable or manageable standards for providing Plaintiffs’
requested relief.........................................................................................................................10
II. PLAINTIFFS FAIL TO STATE A CLAIM AGAINST DEFENDANTS’ UTAH
LEGISLATIVE REDISTRICTING COMMITTEE, SENATOR SCOTT SANDALL,
SPEAKER WILSON, AND PRESIDENT ADAMS. ............................................................... 14
A. Plaintiffs fail to state a claim because the Committee and Individual Legislative Defendants
are unable to act on the Legislature’s behalf to provide the relief Plaintiffs seek. ......................14
B. Plaintiffs fail to state a claim because Individual Legislative Defendants are immune from
claims related to their actions as legislators. .............................................................................15
III. PLAINTIFFS’ COMPLAINT FAILS TO STATE A CLAIM UNDER THE UTAH
CONSTITUTION AGAINST LEGISLATIVE DEFENDANTS. ............................................ 17
A. Plaintiffs fail to state a claim because the relief they seek is barred by the separation of
powers doctrine. .......................................................................................................................18
B. Plaintiffs fail to state a claim under the Utah Constitution because the constitution does not
guarantee a beneficial political outcome for a given political affiliation and does not prohibit
drawing districts in a way that may impact the political power of a political party. ...................20
(1) Count One fails to state a claim upon which relief may be granted under article I,
section 17 of the Utah Constitution. ................................................................................................ 20
(2) Count Two fails to state a claim under article I, sections 2 and 24 of the Utah
Constitution...................................................................................................................................... 22
(3) Count Three fails to state a claim under article I, sections 1 and 15 of the Utah
Constitution...................................................................................................................................... 26
(4) Count Four fails to state a claim under article IV, section 2 of the Utah Constitution........ 27
C. Plaintiffs fail to state a claim under article I, section 2 and article VI, section 1 of the Utah
Constitution. ............................................................................................................................28
CONCLUSION ........................................................................................................................... 32

i
 TABLE OF AUTHORITIES

Cases
2BD Assocs. Ltd. P’ship v. County Comm’rs, 896 F.Supp. 528 (D. Md. 1995) .............................. 16
Am. Bush v. City of S. Salt Lake, 2006 UT 40, 140 P.3d 1235 ..................................................... 27
Am. W. Bank Members, L.C. v. State, 2014 UT 49, 342 P.3d 224.................................................. 3
Anderson v. Cook, 102 Utah 265, 130 P.2d 278 (1942) ......................................................... 21, 22
Baker v. Carr, 369 U.S. 186 (1962)...................................................................................... 6, 7, 10
Blue Cross & Blue Shield of Utah v. State, 779 P.2d 634 (Utah 1989) .................................. 23, 26
Carter v. Lehi City, 2012 UT 2, 269 P.3d 141 ........................................................................ 29, 30
Cook v. Bell, 2014 UT 46, 344 P.3d 634 ...................................................................................... 27
Davis v. Bandemer, 478 U.S. 109 (1986) ............................................................................... 25, 26
Dombrowski v. Eastland, 387 U.S. 82 (1967) ................................................................................ 16
Eastland v. United States Servicemen’s Fund, 421 U.S. 491 (1975) ............................................... 16
Gallivan v. Walker, 2002 UT 89, 54 P.3d 1069 ...................................................................... 23, 30
Grant v. Herbert, 2019 UT 42, 449 P.3d 141 ............................................................................... 30
Harper v. Hall, 868 S.E.2d 499 (N.C. 2022) .................................................................................. 6
In re Childers-Gray, 2021 UT 13, 487 P.3d 96 .......................................................................... 6, 7
In re Grand Jury, 821 F.2d 946 (3d Cir. 2006)............................................................................... 16
Johnson v. Johnson, 2010 UT 28, 234 P.3d 1100........................................................................... 5
Johnson v. Wis. Elections Comm’n, 967 N.W.2d 469 (Wis. 2021) .................................. 12, 13, 27
Koerber v. Mismash, 2013 UT App 266, 315 P.3d 1053.......................................................... 4, 25
League of Women Voters v. Commonwealth, 178 A.3d 737 (Pa. 2018) ......................................... 6
Marylanders For Fair Representation, Inc. v. Schaefer, 144 F.R.D. 292 (D. Md. 1992) ................ 16
Moore v. Harper, 142 S. Ct. 1089 (2022)..................................................................................... 10
Oakwood Vill. LLC v. Albertsons, Inc., 2004 UT 101, 104 P.3d 1226 ........................................... 3
Parkinson v. Watson, 4 Utah 2d 191, 291 P.2d 400 (1955) ...................................................... 9, 19
Radogno v. Ill. State Bd. Of Elections, No. 11-CV-04884, 2011 WL 5025251 (N.D. Ill. Oct. 21,
2011).......................................................................................................................................... 27
Riddle v. Perry, 2002 UT 10, 40 P.3d 1128 .................................................................................. 16
Rucho v. Common Cause, 139 S. Ct. 2484 (2019) ................................................................ passim
Salt Lake City v. State, 2020 UT 27, 466 P.3d 158......................................................................... 3
Schlitz v. Commonwealth of Virginia, 854 F.2d 43 (4th Cir. 1988)................................................. 16
Skokos v. Corradini, 900 P.2d 539 (Utah Ct. App. 1995) .............................................................. 6
South Salt Lake City v. Maese, 2019 UT 58, 450 P.3d 1092 .......................................................... 4
State v. Anderson, 910 P.2d 1229, 1238 (Utah 1996) ................................................................... 17
State v. Angilau, 2011 UT 3, 245 P.3d 745............................................................................. 23, 26
State v. Canton, 2013 UT 44, 308 P.3d 517 ................................................................................. 25
State v. Daniels, 2002 UT 2, 40 P.3d 611 ..................................................................................... 16
State v. Drej, 2010 UT 35, 233 P.3d 476 ...................................................................................... 18

ii
Tenney v. Brandhove, 341 U.S. 367 (1951) .................................................................................. 16
United States v. Brewster, 408 U.S. 501 (1972) ............................................................................. 16
Utah Power & Light Co. v. Provo City, 94 Utah 203, 74 P.2d 1191 (1937) ................................ 30
Vieth v. Jubelirer, 541 U.S. 267 (2004) .......................................................................... 5, 8, 11, 12
Wood v. Univ. of Utah Med. Ctr., 2002 UT 134, 67 P.3d 436...................................................... 16
Constitutional Provisions
Utah Const. art. I, § 1 .............................................................................................................. 20, 26
Utah Const. art. I, § 2 .................................................................................................... 2, 20, 23, 29
Utah Const. art. I, § 15 ............................................................................................................ 20, 26
Utah Const. art. I, § 17 ............................................................................................................ 20, 21
Utah Const. art. I, § 24 ............................................................................................................ 20, 23
Utah Const. art. IV, § 2 ........................................................................................................... 20, 27
Utah Const. art. V, § 1 .................................................................................................................. 18
Utah Const. art. VI, § 1 ......................................................................................................... 2, 7, 30
Utah Const. art. VI, § 8 ................................................................................................................. 15
Utah Const. art. IX, § 1 .......................................................................................................... passim
Utah Const. art. IX, § 2 ................................................................................................................. 19
Utah Const. art. XXIII .................................................................................................................. 29
Rules
Utah R. Civ. P. 12(b)(1) .............................................................................................................. 1, 3
Utah R. Civ. P. 12(b)(6) .............................................................................................................. 1, 3
Treatises
Statutes subject to amendment—Acts enacted by initiative and referendum, 1A Sutherland
Statutory Construction § 22:6 (7th ed.) ..................................................................................... 31
William M. Howard, Construction and Application of Federal and State Constitutional and
Statutory Speech or Debate Provisions, 24 A.L.R. 6th 255 (2013) .......................................... 16
Other Authorities
National Archives and Records Administration, The Founding Fathers: Massachusetts, Mar. 5,
2018 ............................................................................................................................................. 8
National Conference of State Legislatures, Creation of Redistricting Commissions, Dec. 10,
2021 ............................................................................................................................................. 9
National Conference of State Legislatures, Redistricting Systems: A 50-State Overview ............ 8
Proceedings and Debates of the Convention Assembled to Adopt a Constitution for the State of
Utah, Day 19 (Mar. 22, 1895) ..................................................................................................... 8
Proceedings and Debates of the Convention Assembled to Adopt a Constitution for the State of
Utah, Day 22 (Mar. 25, 1895) ................................................................................................... 21

iii
 This motion requires you to
respond. Please see the Notice
to Responding Party.

Defendants Utah State Legislature, Utah Legislative Redistricting Committee, Senator

Scott Sandall, Representative Brad Wilson (“Speaker Wilson”), and Senator Stuart Adams

(“President Adams”) (collectively, “Legislative Defendants”), by and through their undersigned

counsel, respectfully move the Court to dismiss Plaintiffs’ Complaint under Rule 12(b)(1) and

(b)(6).

SUMMARY OF RELIEF REQUESTED AND GROUNDS FOR RELIEF

Plaintiffs’ claims boil down to a political disagreement over how congressional

boundaries should be drawn. Plaintiffs would transform the highly political task of drawing

congressional boundaries into a judicial exercise based on illusory standards of political equality

in a highly unequal partisan landscape. They ask the Court to ignore the Utah Constitution’s

mandate for “the Legislature [to] divide the state into congressional . . . districts.” For Plaintiffs

to prevail on any of their claims would require an unprecedented reading of the Utah

Constitution, which would distort beyond recognition provisions never intended to apply to the

Legislature’s constitutional duty to draw congressional boundaries. The Utah Constitution has

committed the responsibility for the redistricting of congressional boundaries exclusively to the

Legislature. The Court should honor the Constitution’s framing.

Plaintiffs’ claims against Legislative Defendants should be dismissed in their entirety and

with prejudice for the following reasons:

I. As a threshold matter, the Court lacks subject matter jurisdiction over Plaintiffs’

claims related to alleged partisan redistricting as a nonjusticiable political question

because:
 A. the Utah Constitution places the authority and discretion for redistricting solely

with the Legislature; and

B. these claims lack any judicially discoverable or manageable standards for

providing Plaintiffs’ requested relief.

II. Plaintiffs fail to state any claim upon which relief may be granted against the

Individual Legislative Defendants and the Legislative Redistricting Committee

because those defendants cannot themselves provide the requested relief and because

the Individual Legislative Defendants are protected by legislative immunity.

III. Plaintiffs fail to state any claim upon which relief may be granted against Legislative

Defendants because:

A. the separation of powers doctrine precludes the Court from providing relief;

B. there is no provision in the Utah Constitution that would be violated if the

Legislature passed a congressional plan that allegedly included partisan

considerations or produced an effect that favored one political party over another;

and

C. article I, section 2 and article VI, section 1 of the Utah Constitution do not

prohibit the Legislature from passing legislation to enact or amend the Utah Code.

For these reasons, the Court should dismiss Plaintiffs’ Complaint in its entirety.

2
 FACTUAL BACKGROUND AND RULE 12(b) STANDARD

Legislative Defendants reject Plaintiffs’ descriptions of the legislative process, 1

conclusions of law,2 mischaracterizations,3 irrelevant information, and conjecture found in the

Complaint for Declaratory and Injunctive Relief (“Complaint”). However, for the purpose of

Legislative Defendants’ motion to dismiss for lack of subject matter jurisdiction under Rule

12(b)(1) and for failure to state a claim under Rule 12(b)(6), the Court should accept Plaintiffs’

factual allegations as true and consider reasonable inferences drawn from those facts in the light

most favorable to Plaintiffs. Salt Lake City v. State, 2020 UT 27, ¶ 26, 466 P.3d 158, 166;

Oakwood Vill. LLC v. Albertsons, Inc., 2004 UT 101, ¶ 9, 104 P.3d 1226, 1230. But the Court

“need not accept extrinsic facts not pleaded nor . . . accept legal conclusions in contradiction of

the pleaded facts.” Am. W. Bank Members, L.C. v. State, 2014 UT 49, ¶ 7, 342 P.3d 224, 228.

Additionally, the Court need not “accept legal conclusions or opinion couched as facts.” Koerber

1
For example, both a citizen initiative and the Legislature’s bills have the same effect of
enacting or modifying statutes in the Utah Code. The Legislature has not modified or repealed an
initiative but rather statutes in the Utah Code. Similarly, the Legislature has chosen to exercise
its exclusive authority to redistrict through legislation that enacts a statute that incorporates by
reference a congressional map that assigns over 70,000 individual census blocks to individual
districts. The legislation incorporating by reference a congressional map is what the Legislature
passed, and the Governor signed, and the resulting statute is the proper focus of the constitutional
evaluation.
2
For example, Plaintiffs suggest that political redistricting should be met with strict scrutiny on
par with race-based discrimination without identifying a single phrase in the Utah Constitution
that identifies a constitutional entitlement to a desired political outcome or any justification as to
why the Court should apply strict scrutiny. Similarly, Plaintiffs suggest that it is constitutionally
acceptable for an entity other than the Legislature to exercise the redistricting authority granted
exclusively to the Legislature by the Utah Constitution.
3
For example, Plaintiffs dramatize the parallel processes of the Legislative Redistricting
Committee and the Independent Redistricting Commission and theatricalize the Governor’s
signing of the congressional map.
3
v. Mismash, 2013 UT App 266, ¶ 3, 315 P.3d 1053, 1054 (citations and internal quotation marks

omitted). Finally, when a court is presented with a challenge to the constitutionality of a statute,

it “presume[s] the statute to be constitutional, resolving any reasonable doubts in favor of

constitutionality.” South Salt Lake City v. Maese, 2019 UT 58, ¶ 8, 450 P.3d 1092, 1095.

Applying these standards of review, the Court should dismiss the Complaint for the reasons

stated herein.

The alleged facts that are material to the legal questions presented are as follows:

1. Every ten years, the federal government conducts a census enumeration of all persons living

in the United States, Congress reapportions congressional representation for each State based

on relational population changes, and states draw new congressional district boundaries to

reflect changes in the state’s population. (Compl., ¶¶ 50–52.)

2. The Utah Constitution states that “the Legislature shall divide the state into congressional,

legislative, and other districts accordingly.” (Id., ¶ 68 (citing Utah Const. art. IX, § 1).)

3. The Utah Constitution recognizes the people’s lawmaking power through ballot initiatives

that are not subject to gubernatorial veto. (Id., ¶ 71.)

4. In the November 2018 general election, the people passed Proposition 4 to enact statutory

redistricting requirements and establish a non-legislative redistricting commission. (Id., ¶ 73.)

5. On March 11, 2020, the Legislature passed SB 200 Redistricting Amendments, repealing

some of the statutory provisions that Proposition 4 enacted and amending others. (Id., ¶ 93.)

6. On November 9, 2021, the Utah State House of Representatives voted 50-22 to pass new

congressional district boundaries; on November 10, 2021, the Utah State Senate voted 21-7

4
 to pass the new congressional district boundaries; and on November 12, 2021, Governor Cox

signed the bill adopting the new congressional district boundaries. (Id., ¶¶ 173, 180, 201.)

7. Proponents of the new congressional district boundaries stated an intent to ensure a mix of

urban and rural areas in each congressional district. (Id., ¶ 187.)

8. All four congressional districts contain a minority of registered Democratic voters. (Id., ¶

226.)

ARGUMENT

I. THE COURT LACKS JURISDICTION OVER PLAINTIFFS’ CLAIMS THAT

PRESENT NONJUSTICIABLE POLITICAL QUESTIONS.

The Court lacks subject matter jurisdiction related to Plaintiffs’ political redistricting

claims (Counts One through Four) because those claims present nonjusticiable political

questions. When a Court lacks subject matter jurisdiction, it lacks authority to hear the merits of

a case. See, e.g., Johnson v. Johnson, 2010 UT 28, ¶ 8, 234 P.3d 1100, 1102. Accordingly, as a

threshold matter, the Court should dismiss the political redistricting claims asserted in Counts

One through Four as nonjusticiable political questions because (A) the Utah Constitution places

the authority and discretion for redistricting solely with the Legislature, and (B) these claims lack

any judicially discoverable or manageable standards for providing Plaintiffs’ requested relief.

Federal courts have tried for over twenty years to find manageable judicial standards to address

claims of partisan gerrymandering but have been unable to do so. 4 Plaintiffs now ask this Court

to engage in the same futile exercise.

4
See generally, e.g., Rucho v. Common Cause, 139 S. Ct. 2484, 2491 (2019); Vieth v. Jubelirer,
541 U.S. 267, 270 (2004). Although some state courts have found partisan gerrymandering to be
justiciable based on those states’ existing constitutions and statutes, see, e.g., Harper v. Hall, 868

5
 A. The Utah Constitution places the authority and discretion for redistricting solely
with the Legislature.

The Court should dismiss Plaintiffs’ political redistricting claims (Counts One though

Four) as nonjusticiable political questions because the Utah Constitution explicitly grants the

Legislature the sole authority and discretion to redistrict: “No later than the annual general

session next following the Legislature’s receipt of the results of an enumeration made by the

authority of the United States, the Legislature shall divide the state into congressional,

legislative, and other districts accordingly.” Utah Const. art. IX, § 1.

A court lacks subject matter jurisdiction when there is no justiciable controversy, Skokos

v. Corradini, 900 P.2d 539, 541 (Utah Ct. App. 1995), and political questions are prime

examples of nonjusticiable claims that a court must dismiss for lack of jurisdiction. A political

question—and the political question doctrine—“prevents judicial interference in matters wholly

within the control and discretion of other branches of government.” Id.; see also In re Childers-

Gray, 2021 UT 13, ¶ 64, 487 P.3d 96.

The political question doctrine is rooted in the separation of powers requirement. Baker v.

Carr, 369 U.S. 186, 217 (1962); Skokos, 900 P.2d at 541; see infra Part III.A. The Utah

Constitution’s separation of powers provision, article V, section 1, “regulates and guides the

apportionment of authority and function between the branches of government.” In re Childers-

Gray, 2021 UT 13, ¶ 64 (internal quotations and citations omitted). Similarly, “the political

question doctrine . . . focus[es] on the proper roles of each branch of government and aim[s] to

S.E.2d 499 (N.C. 2022); League of Women Voters v. Commonwealth, 178 A.3d 737 (Pa. 2018),
Utah’s Constitution does not permit a court to re-draw district maps for reasons set forth herein.

6
curtail interference of one branch in matters controlled by the others.” Id. To determine whether

an issue poses a nonjusticiable political question, courts consider several factors, including

whether there is “a textually demonstrable constitutional commitment of the issue to a coordinate

political department.” Baker, 369 U.S. at 217.

Article IX, section 1 of the Utah Constitution vests the power to divide the state into

congressional districts solely with the Legislature, and no other provision in the Utah

Constitution expressly confers redistricting authority on any other branch or to the people.

Contrary to article VI, section 1, in which the Utah Constitution explicitly grants legislative

authority to both the Legislature and the people, article IX, section 1 explicitly grants

redistricting authority solely to the Legislature. Furthermore, the Utah Constitution does not limit

the Legislature’s exercise of that authority. 5 Absent an express constitutional limitation on

legislative power, the Court does not have jurisdiction to opine on the political decision of the

political branch regarding where to draw district lines and the resulting effect on the potential

success of a given political party’s efforts to gain political power. Thus, the constitutional

authority to redistrict—the political decision of where to draw district lines—lies exclusively

with the Legislature and presents a nonjusticiable political question.

5
In contrast to the Utah Constitution’s unrestricted delegation of authority to the Legislature to
divide congressional districts, other constitutional provisions expressly limit grants of authority.
Examples include article VIII, section 4, which grants the Utah Supreme Court the power to
“adopt rules of procedure and evidence to be used in the courts of the state,” but permits the
Legislature to amend those rules “upon a vote of two thirds of all members of both houses of the
Legislature;” and article VII, section 10, which grants the Governor authority to nominate and
appoint state and district officers, but limits this power to the “consent of the Senate.”

7
 Claims of political gerrymandering have been raised since the nation was in its infancy,

and the framers of the Utah Constitution were certainly aware of it leading up to Utah’s

statehood in 1896. See Rucho, 139 S. Ct. at 2494–95 (discussing framers’ understanding of

political gerrymandering when drafting the United States Constitution). “Political gerrymanders

are not new to the American scene. One scholar traces them back to the Colony of Pennsylvania

at the beginning of the 18th century, where several counties conspired to minimize the political

power of the city of Philadelphia . . .” Vieth, 541 U.S. at 274.6 Notwithstanding the Utah framers’

familiarity with the American redistricting context, the only “political equality” the framers

addressed was to confer “upon women the right to vote and exercise political privileges equal

with men.” Proceedings and Debates of the Convention Assembled to Adopt a Constitution for

the State of Utah, Day 19 (Mar. 22, 1895).7

Redistricting has historically been a legislative function. “For the first 160-plus years of

our nation’s history, all redistricting was performed by state legislatures, with little guidance on

when or how to do it—or whether to do it at all” and “changing redistricting systems is a

relatively new phenomenon in American democracy.”8 While this new phenomenon is now the

6
Indeed, the concept predates Utah’s statehood by more than 80 years: the namesake for the
1812 term “gerrymander,” Massachusetts governor Elbridge Gerry, signed the Declaration of
Independence and served as a delegate to the constitutional convention. National Archives and
Records Administration, The Founding Fathers: Massachusetts, Mar. 5, 2018,
https://www.archives.gov/founding-docs/founding-fathers-massachusetts#gerry.
7
https://le.utah.gov/documents/conconv/19.htm.
8
National Conference of State Legislatures, Redistricting Systems: A 50-State Overview,
https://www.ncsl.org/research/redistricting/redistricting-systems-a-50-state-overview.aspx (last
visited Apr. 12, 2022).

8
practice in some states, the reassignment of the redistricting power was accomplished by

amending the constitutions of those states.9

If the framers of the Utah Constitution thought it necessary to avoid political

gerrymandering in redistricting, they would certainly have expressed this intention as an

exception to article IX, section 1. Instead, the framers expressly reserved the redistricting

function exclusively to the Legislature. As recognized by the Utah Supreme Court:

It is plainly apparent from the discussions in our own Constitutional

Convention that they proceeded upon the assumption that the
Convention had full power to determine the basis of representation
in the state legislature, and that the state legislature would succeed
to such power except as to such restrictions as the Constitution
should specifically prescribe.

Parkinson v. Watson, 4 Utah 2d 191, 199, 291 P.2d 400, 405 (1955).

The nature of Plaintiffs’ claims as a nonjusticiable political question is revealed in the

term “partisan gerrymandering.” Although Utah’s constitutional framers did not seek to

constitutionally guarantee a particular political outcome for redistricting, Plaintiffs now ask the

Court to invent a judicial standard of redistricting that would guarantee a particular political

outcome. While reasonable minds may differ on whether vesting redistricting power solely with

the Legislature is the best policy, that policy is enshrined in the Utah Constitution and may not

be unilaterally changed by the judicial branch, which is the least political of the three branches of

government and, thus, the least suited to make policy decisions. Because the Utah Constitution

vests the authority to divide the state into congressional districts solely with the Legislature,

9
National Conference of State Legislatures, Creation of Redistricting Commissions, Dec. 10,
2021, https://www.ncsl.org/research/redistricting/creation-of-redistricting-commissions.aspx,
(last visited Apr. 12, 2022).

9
where the Legislature draws those divisions is a political question. Therefore, the Court lacks

subject matter jurisdiction regarding Plaintiffs’ Counts One through Four and must dismiss

them.10

B. There are no judicially discoverable or manageable standards for providing

Plaintiffs’ requested relief.

The Court lacks subject matter jurisdiction related to Plaintiffs’ political redistricting

claims (Counts One through Four) as nonjusticiable political questions because there are no

judicially discoverable or manageable standards for providing Plaintiffs’ requested relief.

Political questions arise in claims that lack “judicially discoverable and manageable standards for

resolving [them].” Baker, 369 U.S. at 217. Unlike malapportionment of congressional districts

based on population (the “one person one vote” principle) or racial gerrymandering claims, both

of which the United States Supreme Court has concluded violate the United States Constitution,

standards to address political gerrymandering claims are not judicially discoverable and

manageable, and therefore, the Court lacks subject matter jurisdiction to consider Plaintiffs’

claims.

Political gerrymandering claims are not judicially discoverable and manageable because

there are unlimited ways to divide the state’s tens of thousands of census blocks into districts

10
Moreover, under the independent state legislature doctrine, which several United States
Supreme Court Justices appear sympathetic to, the Elections Clause of the United States
Constitution assigns the task of congressional redistricting “to the state legislatures, expressly
checked and balanced by the Federal Congress.” See Rucho, 139 S. Ct. at 2496 (discussing why
federal courts have a limited role to play); See Moore v. Harper, 142 S. Ct. 1089, 1091 (2022)
(Alito, J., dissenting with two other Justices and J. Kavanaugh, in his concurrence, also agreeing)
(dissenting from denial of stay and raising the Elections Clause argument as having merit).
According to the doctrine, state courts may be limited when reviewing state legislatures’ federal
election regulations. Moore, 142 S. Ct. at 1091 (Alito, J., dissenting).
10
based on the federal census data upon which a redistricting map is based. Because of this reality,

the Legislature is tasked with making difficult policy decisions by weighing various and

frequently competing redistricting principles. These conflicting policy decisions carry political

consequences, and those decisions are constitutionally assigned to, and best handled by, the

political branch of government. For a court to evaluate and opine on the political outcomes of

these policy decisions, the court would plunge itself into “one of the most intensely partisan

aspects of American political life.” Rucho, 139 S. Ct. at 2507.

Rather than discovering whether the placement of a district line carries a political

outcome, the “‘central problem’ . . . is ‘determining when political gerrymandering has gone too

far,’” Rucho, 139 S. Ct. at 2497 (quoting Vieth, 541 U.S. at 296 (plurality opinion)). What

method or standard should the Court divine from the dearth of express language in the Utah

Constitution? The requirement that the population of congressional districts must be as nearly

equal as practicable makes it impossible to draw districts that genuinely reflect partisan equality

while also ensuring that the districts are geographically contiguous and compact. Voters favoring

major political parties are not uniformly geographically disbursed, voters favoring smaller

political parties are widely disbursed, and voters who are unaffiliated, nonpartisan, or anti-

partisan are randomly scattered among them. Furthermore, the way any of those individual

voters may vote, or whether they will vote at all, in a given election is subject to change and

dependent on the circumstances of the given election and consequently entirely unknowable.11

11
Plaintiffs’ arguments assume that voters who self-identify as members of a particular political
party will always vote for that political party’s candidates and ignore the possibility that
members of a political party who vote in one election may not vote at all in a subsequent
election.

11
The Utah Constitution simply does not require any proportional leveling of these disparate and

unknowable interests, let alone provide any discernable standards by which either the legislature

or a court could weigh potential political outcomes.

The United States Supreme Court described this impossibility in the Court’s plurality

opinion in Vieth: “[p]olitical affiliation is not an immutable characteristic, but may shift from one

election to the next; and even within a given election, not all voters follow the party line.” Vieth,

541 U.S. at 287. Recognizing a political gerrymandering claim would require this Court “to

indulge a fiction—that partisan affiliation is permanent and invariably dictates how a voter casts

every ballot.” Johnson v. Wis. Elections Comm’n, 967 N.W.2d 469, 483 (Wis. 2021). Moreover,

Plaintiffs conspicuously allege that the Legislature drew congressional district lines based on

partisan data to reach an expected political outcome while they ask the Court for relief that

commits the same alleged impropriety: providing new congressional district lines also drawn

based on partisan data to reach an expected political outcome, but instead their desired political

outcome.12

In holding that partisan gerrymandering claims are nonjusticiable under Wisconsin’s

constitution, the Wisconsin Supreme Court stated that “[e]ven if a state's partisan divide could be

accurately ascertained, what constitutes a ‘fair’ map poses an entirely subjective question with no

governing standards grounded in law. ‘Deciding among . . . different visions of fairness . . . poses

basic questions that are political, not legal.’” Id. (citing Rucho, 139 S. Ct. at 2500). The

12
Plaintiffs allege that the legislature engaged in cracking (i.e., politically benefiting one party
by diffusing members of the other party among multiple districts), but appear to advocate,
instead, for packing (i.e., politically benefiting one party by concentrating its members into a
district to give that party a safe district).
12
Wisconsin Supreme Court found that nothing in Wisconsin’s constitution “authorizes this court

to recast itself as a redistricting commission in order ‘to make [its] own political judgment about

how much representation particular political parties deserve—based on the votes of their

supporters—and to rearrange the challenged districts to achieve that end.’” Id. (citing Rucho, 139

S. Ct. at 2499). Similarly, the Utah Constitution contains no authorization for Utah’s courts to

assume this role.

Plaintiffs appear to request some sort of proportional parliamentary system in which a

given political persuasion is entitled to a number of representatives that is equal to the proportion

of votes cast in support of that political persuasion. See, e.g., Compl., ¶ 206 (forecasting that the

newly enacted congressional map will ensure that a Republican wins each of Utah’s four

congressional seats for the next decade even though 100% of votes would not be cast for

Republicans). However, this proportional distribution of political power has no grounding in

American redistricting law or history:

“It hardly follows from the principle that each person must have an
equal say in the election of representatives that a person is entitled
to have his political party achieve representation in some way
commensurate to its share of statewide support.” . . . Perhaps the
easiest way to see the flaw in proportional party representation is
to consider third party candidates. Constitutional law does not
privilege the “major” parties; if Democrats and Republicans are
entitled to proportional representation, so are numerous minor
parties. If Libertarian Party candidates receive approximately five
percent of the statewide vote, they will likely lose every election;
no one deems this result unconstitutional.

Johnson, 967 N.W.2d at 482–484 (quoting Rucho, 139 S. Ct. at 2501) (additional quotations and

citations omitted).

13
 There is simply no judicially discoverable or manageable method of guessing how a

given district’s population may vote and no judicially discoverable or manageable standards for

determining whether the imagined outcome of a given election in a given district is beyond the

imagined constitutional boundary for political outcomes. Therefore, Plaintiff’s political

redistricting claims are nonjusticiable, and the Court must dismiss Counts One through Four for

lack of subject matter jurisdiction. The Court need not engage in the constitutional contortions

that would be required to invent a legal standard to provide Plaintiffs relief under the merits of

these claims.

II. PLAINTIFFS FAIL TO STATE A CLAIM AGAINST DEFENDANTS’ UTAH

LEGISLATIVE REDISTRICTING COMMITTEE, SENATOR SCOTT
SANDALL, SPEAKER WILSON, AND PRESIDENT ADAMS.

Because this case involves a nonjusticiable political question, the Court need not

entertain the merits of the claims against the Legislative Defendants. However, in addition to

nonjusticiability, Plaintiffs have failed to state a claim upon which relief may be granted against

Defendants Utah Legislative Redistricting Committee, Senator Scott Sandall, Speaker Wilson,

and President Adams (collectively, “Committee and Individual Legislative Defendants”) for two

reasons. First, the Committee and Individual Legislative Defendants are unable to act on the

Legislature’s behalf and provide the relief Plaintiffs request. Second, the Individual Legislative

Defendants are immune from claims related to their actions as legislators.

A. Plaintiffs fail to state a claim because the Committee and Individual Legislative
Defendants are unable to act on the Legislature’s behalf to provide the relief
Plaintiffs seek.

The Legislature as a whole divides the state into congressional districts; the Committee

and Individual Legislative Defendants do not. Plaintiffs assume, incorrectly, that the Committee,

14
by recommending a map, and the Individual Legislative Defendants, by virtue of their chair

status and leadership positions, act as surrogates for the Legislature. (See Compl., ¶¶ 41–43,

142). This simply is not the case. The Committee merely recommended the map to the

Legislature. Despite their chair status and leadership positions, the Individual Legislative

Defendants are members of a 104-member Legislature that acts by majority vote. The Committee

and Individual Legislative Defendants are not responsible for the Legislature’s actions or

inactions, nor do they have the authority to compel legislative action. Even if, arguendo, the

Court grants Plaintiffs’ request for relief and compels the Legislative Defendants to redraw and

pass a redistricting plan, the Committee and Individual Legislative Defendants are unable to act

on the Legislature’s behalf and provide the relief Plaintiffs request. Because Plaintiffs fail to

state a claim upon which relief can be granted as to the Committee and Individual Legislative

Defendants, the Court must dismiss these defendants from the case.

B. Plaintiffs fail to state a claim because Individual Legislative Defendants are

immune from claims related to their actions as legislators.

The Court should dismiss Plaintiffs’ claims against the Individual Legislative Defendants

because they are immune from claims related to their actions as legislators. Like the federal

government and forty-three other states, Utah has adopted the common law legislative immunity

and legislative privilege doctrines into its constitution through a Speech or Debate Clause. 13 See

13
Utah’s Speech or Debate Clause provides that “[m]embers of the Legislature, in all cases
except treason, felony or breach of the peace, shall be privileged from arrest during each session
of the Legislature, for fifteen days next preceding each session, and in returning therefrom; and
for words used in any speech or debate in either house, they shall not be questioned in any other
place.” Utah Const. art. VI, § 8.

15
generally William M. Howard, Construction and Application of Federal and State Constitutional

and Statutory Speech or Debate Provisions, 24 A.L.R. 6th 255 (2013).

Legislative immunity applies to legislators performing a legitimate legislative function or

acting in the sphere of legislative activity. See Tenney v. Brandhove, 341 U.S. 367, 376 (1951).

Legislative immunity “enables legislators to be free, not only from ‘the consequences of litigation’s

results, but also from the burden of defending themselves.’” 2BD Assocs. Ltd. P’ship v. County

Comm’rs, 896 F.Supp. 528, 531 (D. Md. 1995) (quoting Dombrowski v. Eastland, 387 U.S. 82, 85

(1967)). “Thus the effect of the doctrine [of legislative immunity] is twofold; it protects legislators

from civil liability, and it also functions as an evidentiary and testimonial privilege.” Id. (citing

Schlitz v. Commonwealth of Virginia, 854 F.2d 43, 46 (4th Cir. 1988)); Marylanders For Fair

Representation, Inc. v. Schaefer, 144 F.R.D. 292, 297 (D. Md. 1992)).

Legislative immunity has two critical features. First, it “applies broadly to evidence or

testimony about all ‘acts that occur in the regular course of the legislative process.’” In re Grand

Jury, 821 F.2d 946, 953 (3d Cir. 2006) (quoting United States v. Brewster, 408 U.S. 501, 525

(1972)). Second, it “is ‘absolute;’ hence, it cannot be overcome by any countervailing interest no

matter how strong.” Id. (citing Eastland v. United States Servicemen’s Fund, 421 U.S. 491, 509–10

n.16 (1975)). While there is little case law interpreting Utah’s Speech or Debate Clause, Utah

courts look to federal case law interpreting the federal clause for guidance. 14 See generally

Riddle v. Perry, 2002 UT 10, ¶ 8, 40 P.3d 1128, 1131 (repeatedly quoting and citing Tenney).

14
Additionally, Utah courts routinely rely on federal precedent when interpreting a state
constitutional provision that is substantially similar to its federal counterpart. See e.g., Wood v.
Univ. of Utah Med. Ctr., 2002 UT 134, ¶ 29, 67 P.3d 436 (applying federal law to interpret the
Utah Due Process Clause); State v. Daniels, 2002 UT 2, ¶ 42, 40 P.3d 611, 623 (applying federal

16
 To the extent Plaintiffs make allegations against the Individual Legislative Defendants in

the Complaint, they entirely relate to the Individual Legislative Defendants’ performance of

legitimate legislative functions—lawmaking and their constitutional duty in enacting a

congressional map. Accordingly, legislative immunity is an absolute bar to Plaintiffs’ claims

against the Individual Legislative Defendants and those claims must be dismissed.

III. PLAINTIFFS’ COMPLAINT FAILS TO STATE A CLAIM UNDER THE

UTAH CONSTITUTION AGAINST LEGISLATIVE DEFENDANTS.

Because this case involves a nonjusticiable political question, the Court need not

entertain the merits of Plaintiffs’ claims under specific provisions of the Utah Constitution.

However, in addition to nonjusticiability, the Complaint fails to state a claim upon which relief

can be granted because: (A) the requested relief is barred by the separation of powers doctrine;

(B) the Utah Constitution does not guarantee a beneficial political outcome for a given political

affiliation and does not prohibit drawing districts in a way that may impact the political power of

a political party; and (C) article I, section 2 and article VI, section 1 of the Utah Constitution do

not prohibit the Legislature from passing legislation to enact or amend the Utah Code as alleged

in Count Five.

law to interpret Utah’s ex post facto clause); State v. Anderson, 910 P.2d 1229, 1238 (Utah 1996)
(applying federal law to interpret article I, section 14 of the Utah Constitution).
17
 A. Plaintiffs fail to state a claim because the relief they seek is barred by the
separation of powers doctrine.

Counts One through Four of Plaintiffs’ Complaint should be dismissed for failure to state

a claim upon which the Court may grant relief. In addition to being grounds for dismissal as a

nonjusticiable political question, the separation of powers doctrine stands alone as a basis for the

Court’s dismissal of Plaintiffs’ claims.

Plaintiffs ask the Court to compel Legislative Defendants to perform their redistricting

duties “in a manner that comports with the Utah Constitution”; set a deadline for Legislative

Defendants to enact a compliant map; and failing this, “order a Court-imposed plan that complies

with the Utah Constitution.” (Compl., pages 78–79). Plaintiffs’ requested relief would require the

Court to exercise a function that is constitutionally the exclusive province of the Legislature.

Article V, section 1 of the Utah Constitution provides:

The powers of the government of the State of Utah shall be divided

into three distinct departments, the Legislative, the Executive, and
the Judicial; and no person charged with the exercise of powers
properly belonging to one of these departments, shall exercise any
functions appertaining to either of the others, except in the cases
herein expressly directed or permitted.

This constitutional provision explicitly prohibits the exercise of any function of one branch of

government that belongs to another branch unless the constitution expressly provides otherwise.

Or, as the Utah Supreme Court states, “[t]he latter phrase of this clause establishes that there may

be exceptions to the separation-of-powers doctrine, but any exception must be found within the

Utah Constitution.” State v. Drej, 2010 UT 35, ¶ 25, 233 P.3d 476, 484. As explained above, see

supra Part I.A, the Utah Constitution provides no express exception to the exclusive grant of

redistricting authority to the Legislature set forth in article IX, section 1.

18
Although court review of a redistricting plan may be proper in some circumstances, it is not

proper for a court to substitute its judgment in the political arena for that of the Legislature. As

explained by the Utah Supreme Court in a decision relating to a previous version of Utah

Constitution article IX, section 2:

The legislature having performed its function, if we are obliged to

review it, we must do so with the highest possible degree of
understanding of the multifarious problems the legislative process
is fraught with, including the makeup of the legislature and its
variety of interests. It must be realized that there is plenty of room
within the framework of the Constitution for legislation with which
we might not agree, were we legislators. It is a rule of universal
acceptance that the wisdom or desirability of legislation is in no
wise for the courts to consider. Whether an act be ill advised or
unfortunate, if such it should be, does not give rise to an appeal
from the legislature to the courts. But the remedy for correction of
legislation remains with the people who elect successive
legislatures.

Parkinson, 4 Utah 2d at 196, 291 P.2d at 403 (internal citations omitted). 15 Because Counts One

through Four of Plaintiffs’ Complaint ask the Court to violate the separation of powers doctrine,

these Counts must be dismissed for failure to state a claim upon which relief may be granted.

15
Parkinson involved a challenge to population deviations between districts. While the
deviations upheld by the court in that case would have been held unconstitutional under
subsequent caselaw interpreting the federal constitution (in violation of the principle of one
person, one vote), the separation of powers principles discussed in that case are relevant to the
matter before the court in this action. In the present case, the Court is asked to read into the Utah
Constitution a mandate to balance the political outcome between the two major political parties
while ignoring the remaining parties, the unaffiliated voters, and the fact that not all members of
a political party consistently vote for that party’s candidates.

19
 B. Plaintiffs fail to state a claim under the Utah Constitution because the
constitution does not guarantee a beneficial political outcome for a given
political affiliation and does not prohibit drawing districts in a way that may
impact the political power of a political party.

Plaintiffs fail to state a claim upon which the Court can grant relief in this case because

the Utah Constitution contains no provision that guarantees a redistricting map that benefits a

given political party based on anticipated outcomes in future elections. Similarly, the Utah

Constitution contains no provision that prohibits drawing districts in a way that may impact the

political power of a political party. Plaintiffs complain of a violation of a constitutional right that

simply does not exist and request that the Court invent legal standards that benefit one political

party and disregard smaller political parties and unaffiliated voters as a remedy for relief. More

specifically, (1) article I, section 17 of the Utah Constitution does not prohibit political

redistricting as alleged in Count One; (2) article I, sections 2 and 24 of the Utah Constitution do

not prohibit political redistricting as alleged in Count Two; (3) article I, sections 1 and 15 of the

Utah Constitution do not prohibit political redistricting as alleged in Count Three; and (4) article

IV, section 2 of the Utah Constitution does not prohibit political redistricting as alleged in Count

Four.

(1) Count One fails to state a claim upon which relief may be granted
under article I, section 17 of the Utah Constitution.

Plaintiffs fail to state a claim upon which relief may be granted under Utah’s Free

Elections Clause in article I, section 17. The Free Elections Clause guarantees a qualified voter

the right to cast a vote, but there is nothing in the Free Elections Clause’s text or precedent to

suggest that it prohibits political redistricting or guarantees that each vote holds substantially

20
equal political power as measured by the voter’s political party affiliation or lack of political

party affiliation. (See Compl., ¶¶ 264, 267).

Utah’s Free Elections Clause states: “All elections shall be free, and no power, civil or

military, shall at any time interfere to prevent the free exercise of the right of suffrage.” Utah

Const. art. I, § 17 (1896).16 If the framers had intended for the Free Elections Clause to guarantee

each voter’s “voting power” based on their partisan affiliation, then they would have expressly

guaranteed this theoretical concept. Nothing in the text of the Constitution suggests the Free

Elections Clause meant that the second largest political party was entitled to a packed

congressional district that could be considered a safe district in their favor, while not

guaranteeing anything to smaller political parties or unaffiliated voters.

In the only decision interpreting Utah’s Free Elections Clause, the Utah Supreme Court

did not expand the Clause’s meaning to guarantee equal voting power based on partisan

affiliation. Rather, the court held that the Clause did not guarantee a person’s “right to appear as

a candidate upon the ticket of any political party.” Anderson v. Cook, 102 Utah 265, 130 P.2d

278, 285 (1942). The Utah Supreme Court explained that voters’ right to suffrage is subject to

16
Utah framers of the Free Elections Clause at Utah’s 1895 Constitutional Convention explicitly
chose to remove “and equal” from the Free Elections Clause. In contrast, many state
constitutions’ have “free and equal clauses.” After reading a draft of section 17: “All elections
shall be free and equal, and no power . . . .”, one of the delegates moved to strike “and equal”
from the line. This motion was directly agreed to without further debate. See Proceedings and
Debates of the Convention Assembled to Adopt a Constitution for the State of Utah, Day 22
(Mar. 25, 1895), https://le.utah.gov/documents/conconv/22.htm (remarks of delegate William
Grant Van Horne). If the framers had intended for the Free Elections Clause to guarantee each
voter’s “voting power” based on their partisan affiliation, then they arguably would not have
removed “and equal” from the Free Elections Clause.

21
the Legislature’s power to prescribe means and methods for elections, voting, and selecting

nominees.

While this provision guarantees the qualified elector the free

exercise of his right of suffrage, it does not guarantee any person
the unqualified right to appear as a candidate upon the ticket of any
political party. It cannot be construed to deny the legislature the
power to provide regulations, machinery and organization for
exercising the elective franchise, or inhibit it from prescribing
reasonable methods and proceedings for determining and selecting
the persons who may be voted for at the election.

Id. The Utah Supreme Court also explained that the Clause is not self-executing but requires the

Legislature “to provide by law for the conduct of elections, and the means of voting, and the

methods of selecting nominees.” Id. The court’s focus was fixed on the exercise of the right to

cast a vote, not on voting power.

The Court should dismiss Plaintiffs’ Free Elections claim, Count One in the Complaint,

because they have not alleged facts that would constitute a violation of a right guaranteed under

article I, section 17 of the Utah Constitution.

(2) Count Two fails to state a claim under article I, sections 2 and 24 of
the Utah Constitution.

Plaintiffs fail to state a claim under article I, sections 2 and 24 of the Utah Constitution.

The 2021 Congressional Plan does not violate Plaintiffs’ fundamental right to vote or preclude

Plaintiffs’ equal opportunity to vote for their preferred congressional candidates under article I,

sections 2 and 24, because political redistricting does not affect a fundamental or critical right

guaranteed to the voters of Utah, and does not create a suspect classification. The Court should

accordingly review the 2021 Congressional Plan under a rational basis standard, and should

conclude that any classification that ensued from the 2021 Congressional Plan was reasonable

22
and that a reasonable relationship exists between the classification and the Legislature’s

legitimate objective of ensuring that congressional districts contain both urban and rural areas.

(Compl., ¶ 187.)

Article I, section 2 of the Utah Constitution provides that “[a]ll political power is inherent

in the people; and all free governments are founded on their authority for their equal protection

and benefit, and they have the right to alter or reform their government as the public welfare may

require.” Utah Const. art. I, § 2 (1896). Article I, section 24 provides that “[a]ll laws of a general

nature shall have uniform operation.” Utah Const. art. I, § 24 (1896). The Court’s analysis of

Plaintiffs’ uniform operation of laws challenge is “guided by the well-settled proposition that all

statutes are presumed to be constitutional and the party challenging a statute bears the burden of

proving its invalidity.” Blue Cross & Blue Shield of Utah v. State, 779 P.2d 634, 637 (Utah

1989).

The Court applies a heightened degree of scrutiny to a law that implicates a “fundamental

or crucial right” or creates a classification that is “impermissible or suspect.” Gallivan v. Walker,

2002 UT 89, ¶ 40, 54 P.3d 1069, 1085 (internal quotations and citation omitted). But, if there is

no fundamental or critical right and no impermissible or suspect classification, the Court applies

a “rationally related” test, or what is essentially rational basis review. See State v. Angilau, 2011

UT 3, ¶ 12, 245 P.3d 745, 750.

Plaintiffs allege that the 2021 Congressional Plan “arbitrarily classifies voters based on

partisan affiliation and geographic location, then targets the disfavored class of voters for

negative differential treatment compared to other similarly situated Utahns,” (Compl., ¶ 274) but

fail to state a claim under article I, sections 2 or 24: Plaintiffs do not identify any fundamental

23
right that the 2021 Congressional Plan violates, or suspect classification that the 2021

Congressional Plan creates. The Court should accordingly analyze Plaintiffs’ claims under

rational basis review.

The 2021 Congressional Plan does not impact Utahns’ right to vote freely for the

candidate of one’s choice and, therefore, does not implicate a fundamental right. In the 2021

Congressional Plan, voters in each district have a vote exactly equal to that of voters in the same

district and in the other districts. Each voter may choose to vote with other Democratic voters or

with other Republican voters. Moreover, this map does not preclude a Republican from voting

for a Democrat, an independent, or another party’s candidate, nor does it preclude a Democrat

from voting for a Republican, an independent, or another party’s candidate, and it does not

preclude an unaffiliated voter from doing the same. The outcome in a future election is

undetermined, and Plaintiffs have not alleged that an individual’s party affiliation (ignoring

unaffiliated voters) is somehow immutable and controlling for all future elections. Even if the

Utah Constitution guarantees a population deviation-based one person, one vote principle that

parallels the federal constitution, there is nothing in the text of article I, Sections 2 or 24, in the

history of those provisions, or in any subsequent precedent to suggest there is a right to voting

outcomes based on one’s political affiliation.

Moreover, Plaintiffs complain that the 2021 Congressional Plan “intentionally cracks

Plaintiffs” who support Democratic candidates to prevent them from achieving a ballot box

victory (Compl., ¶ 275), but then asks that this court provide legal relief by intentionally packing

Plaintiffs. If cracking a partisan group violates the invented constitutional right Plaintiffs seek to

protect, then packing by the Court would certainly violate the same invented constitutional right.

24
 Just as the United States Supreme Court noted that the Founders of the United States

Constitution did not think proportional representation was required, the same is true for the

framers of the Utah Constitution. See Rucho, 139 S. Ct. at 2499. Neither the text nor history

contains any suggestion that “a person is entitled to have his political party achieve

representation in some way commensurate to its share of statewide support.” See id. at 2501. The

bottom line is that “[i]f members of the major political parties are protected by the [Uniform

Operation of Law provision] from dilution of their voting strength, then members of every

identifiable group that possesses distinctive interests and tends to vote on the basis of those

interests should be able to bring similar claims.” Davis v. Bandemer, 478 U.S. 109, 147 (1986)

(O’Connor, J., concurring), abrogated by Rucho, 139 S. Ct. at 2484. If the invented

constitutional guarantee protects Plaintiffs’ partisan ambitions, it must also do so with all Utah

voters’ partisan ambitions. “There is simply no clear stopping point to prevent the gradual

evolution of a requirement of roughly proportional representation for every cohesive political

group.” Id. Thus, Plaintiffs fail to allege the 2021 Congressional Plan implicates a fundamental

or critical right.

Plaintiffs also fail to allege any facts suggesting that the 2021 Congressional Plan creates

a suspect classification. Instead, they state a legal conclusion couched as fact. (Compl., ¶ 275.)

The Court need not “accept legal conclusions or opinion couched as facts.” Koerber, 2013 UT

App 266, ¶ 3, 315 P.3d 1053, 1054 (citations and internal quotation marks omitted). Unlike race-

based laws, which are inherently suspect, see State v. Canton, 2013 UT 44, ¶ 36, 308 P.3d 517,

525, there is no authority suggesting that classifications based on voters’ party affiliations,

expected alliance with a political party, or imagined voting outcome are suspect classifications.

25
Simply stated, the “right to vote does not imply that political groups have a right to be free from

discriminatory impairment of their group voting strength.” Davis, 478 U.S. at 150 (O’Connor, J.,

concurring in the judgment).

Because Plaintiffs fail to allege facts sufficient to show infringement of a fundamental

right or a suspect classification, the Court should apply rational basis review. See Angilau, 2011

UT 3, ¶ 21, 245 P.3d 745, 752. The Court’s rational basis review involves determining “whether

the classification is reasonable, whether the objectives of the legislative action are legitimate, and

whether there is a reasonable relationship between the classification and the legislative purpose.”

Blue Cross & Blue Shield of Utah, 779 P.2d at 637. The Court gives broad deference to the

Legislature and will sustain a classification if “facts can reasonably be conceived which would

justify the distinctions or differences in state policy [expressed by the challenged legislation] as

between different persons.” Id.

Accepting Plaintiffs’ factual allegations as true, and even in the light most favorable to

Plaintiffs, Plaintiffs’ allegations trigger only rational basis review of the Legislature’s action. The

Legislature voted on congressional district lines for the reasonable purpose of ensuring a balance

of urban and rural areas in each congressional district. (Compl., ¶ 187). Having an alleged

rational basis in hand, the Court should dismiss Plaintiffs’ claims under article I, Sections 2 and

24 of the Utah Constitution.

(3) Count Three fails to state a claim under article I, sections 1 and 15 of
the Utah Constitution.

The Utah Constitution’s guarantees of freedom of speech and an inalienable right to

freely communicate thoughts and opinions under article I, sections 1 and 15 of the Utah

Constitution, respectively, simply do not relate to the redistricting process. Where the Legislature

26
chooses to place a congressional district boundary does not in any way restrict an individual’s

speech or impair an individual’s ability to communicate. See Radogno v. Ill. State Bd. Of

Elections, No. 11-CV-04884, 2011 WL 5025251 at *7 (N.D. Ill. Oct. 21, 2011); Johnson, 967

N.W.2d at 487. As previously noted, see supra Part I.A, the framers were fully aware of partisan

redistricting, and had they intended to prohibit redistricting for partisan gain, they would have

done so.

Nevertheless, these constitutional rights were not intended to be distorted in the manner

Plaintiffs suggest. “The minutes of the 1895 Utah constitutional convention point to the fact that

the framers of our constitution . . . envisioned a limited freedom of speech.” Am. Bush v. City of

S. Salt Lake, 2006 UT 40, ¶ 42, 140 P.3d 1235, 1248. As clearly expressed by the Utah Supreme

Court, “First Amendment jurisprudence in this case does not guarantee unlimited participation in

political activity, nor does it establish a right to political success. Rather, it protects individuals

from regulations that directly discourage or prohibit political expression.” Cook v. Bell, 2014 UT

46, ¶ 57, 344 P.3d 634, 642. Clearly, a map of a district boundary is not a regulation that directly

discourages or prohibits political expression. And the right to political expression does not

guarantee a voter’s right to political success. There is no way to grant Plaintiffs’ relief under

article I, sections 1 and 15 that comports with the text of those sections and relevant case law,

and, therefore, the Court should dismiss Count Three of the Complaint.

(4) Count Four fails to state a claim under article IV, section 2 of the Utah
Constitution.

Plaintiffs fail to state a claim under article IV, Section 2 of the Utah Constitution because

the congressional map does not restrict a citizen’s right to vote when that citizen is eighteen

years of age or over and presents proper proof of residence. Utah Const. art. IV, § 2. As

27
evidenced by the plain text of the provision, the intent of the ratifiers was to address a citizen’s

qualifications to cast a vote. There is no pertinent Utah history or case law that expands this

constitutional provision to ensure a desired political outcome. This provision is simply

inapplicable to the present circumstances and, to the extent that it is based on this provision,

Count Four of the Complaint should be dismissed forthwith.

C. Plaintiffs fail to state a claim under article I, section 2 and article VI, section 1 of
the Utah Constitution.

Count Five of Plaintiffs’ Complaint should be dismissed for failure to state a claim upon

which relief may be granted because article I, section 2 and article VI, section 1 of the Utah

Constitution do not prohibit the Legislature from passing legislation to enact or amend the Utah

Code. To grant the relief sought under that Count, the Court would need to impose an

unconstitutional restriction on the legislative power of the Legislature.

Plaintiffs argue that “[i]n enacting Proposition 4’s redistricting reforms—including

shifting primary responsibility for drawing electoral maps from the Legislature to an independent

commission and establishing mandatory anti-gerrymandering standards—the people of Utah,

including Plaintiffs, exercised their constitutional right to alter or reform their government.”

(Compl., pages 77–78).17

17
Plaintiffs’ allegations should be accepted as true for the purpose of this Rule 12 motion, and
the legal question of the Legislature’s plenary power to enact, amend, or repeal statutes through
legislation does not depend on a factual question. As a point of information irrelevant to the legal
determination of this motion against Count five, Plaintiffs’ argument that the Legislature
“repealed Proposition 4” (see Compl., ¶¶ 317–318) is incorrect based on the Utah Code. Through
Proposition 4, voters enacted Title 20A, Chapter 19, Utah Independent Redistricting Commission
and Standards Act. Later, through S.B. 200, 2020 General Session, the Legislature repealed and
replaced Title 20A, Chapter 19 with an alternate version in Title 20A, Chapter 20, Utah
Independent Redistricting Commission. Chapter 20 provides for an advisory redistricting

28
 Article I, section 2 of the Utah Constitution provides: “All political power is inherent in

the people; and all free governments are founded on their authority for their equal protection and

benefit, and they have the right to alter or reform their government as the public welfare may

require.”

While the people clearly have the right to alter or reform their government, any alteration

or reformation must be accomplished in accordance with the Utah Constitution, which is an

expression of the will of the people regarding the power delegated by them. 18 Article IX, section

1 of the Utah Constitution expressly grants the power to “divide the state into congressional,

legislative, and other districts” to the Legislature. A change to this authority can only be

accomplished through a constitutional amendment or revision, and the people have expressed

their will regarding how this must be done in article XXIII of the Utah Constitution.19

commission but does not include the unconstitutional provisions of Chapter 19 related to the
Legislature’s authority. The Legislature could have made these statutory changes by amending
Chapter 19 or repealing it and replacing it with chapter 20, but either approach is well within the
Legislature’s plenary power to pass legislation. Simply stated, Chapter 19 is not Proposition 4,
and Chapter 20 is not S.B. 200: they are statutes contained within the Utah Code. The
Legislature’s amendment or repeal of a statute is not an amendment or repeal of the method, be it
initiative or bill, that originally enacted that statute. The method of enacting a statute does not in
any way restrict the Legislature’s plenary authority to later amend or repeal that statute.
18
“[T]he people have the inherent authority to allocate governmental power in the bodies they
establish by law. Acting through the state constitution, the people of Utah divided their political
power, vesting it in the various branches of government. Article VI vests ‘The Legislative power
of the State’ in two bodies: (a) ‘the Legislature of the State of Utah,’ and (b) ‘the people of the
State of Utah as provided in Subsection (2).’” Carter v. Lehi City, 2012 UT 2, ¶ 22, 269 P.3d
141.
19
Article XXIII provides that the constitution may be amended by a vote of the people: after a
favorable vote on a proposal of “two-thirds of all the members elected to each of the two
houses;” or after revision during a convention called by the same super-majority of the
Legislature. Utah Const. art. XXIII.

29
 Article VI, section 1, provides that “the Legislative power of the State shall be vested in”

both a Senate and House of Representatives and “the people of the State of Utah.” Utah Const.

Art. VI, § 1. “The power of the legislature and the power of the people to legislate through

initiative and referenda are coequal, coextensive, and concurrent and share ‘equal dignity.’”

Gallivan, 2002 UT 89, ¶ 23, 54 P.3d 1069, 1080 (citing Utah Power & Light Co. v. Provo City,

94 Utah 203, 235–36, 74 P.2d 1191, 1205 (1937) (Larson, J., concurring)). “On its face, article

VI recognizes a single, undifferentiated ‘legislative power,’ vested both in the people and in the

legislature. Nothing in the text or structure of article VI suggests any difference in the power

vested simultaneously in the ‘Legislature’ and ‘the people.’ The initiative power of the people is

thus parallel and coextensive with the power of the legislature.” Carter, 2012 UT 2, ¶ 22, 269

P.3d 141, 148.

Because the power of the Legislature and the people to legislate is coequal, the people

may amend or repeal legislation passed by the Legislature, and the Legislature may repeal or

amend legislation passed by the people. 20 The only limitations placed on this coequal power are

those expressly provided in the Constitution: for example, the limitation on the people’s

referendum power in relation to legislation “passed by a two-thirds vote of the members elected

to each house of the Legislature.” Utah Const. art. VI, § 1(2). Thus, subject to such express

limitations, the Court should not differentiate between a legislative action taken by the

Legislature, and one taken by the people. If a statute may be amended or repealed by either the

20
This occurred, for example, with the initiative on medical marijuana, which was the subject of
Grant v. Herbert, 2019 UT 42, 449 P.3d 141. In that case, the court held that the constitutional
prohibition of a referendum when legislation passes by two-thirds of both houses of the
Legislature applies even when the law sought to be challenged by referendum repealed an
initiative. Id. ¶¶ 32–33.
30
Legislature or the people, it is irrelevant whether the Legislature or the people enacted the

underlying legislation.

If the people intended to limit the Legislature’s power to repeal or amend law created via

an initiative, the limitation would have been included in our Constitution, as it has been in other

states.

Initiative and referendum states commonly provide in their

constitutions that a law enacted by initiative or referendum cannot
be amended or repealed by the legislature, either absolutely or for a
limited period of time, unless otherwise provided. Where a statute
was originally enacted by initiative, the legislature cannot adopt
amendments to that statute without approval by the electorate.
Such a limitation was considered necessary to protect the right of
the people to enact laws directly. In the absence of any such
limitation, the legislature can immediately render such laws
ineffective by amendment.

Statutes subject to amendment—Acts enacted by initiative and referendum, 1A Sutherland

Statutory Construction § 22:6 (7th ed.) (emphasis added).

Though such a limitation does not exist in Utah’s Constitution, the people are not left

without a remedy. If voters disagree with subsequent action by the Legislature in relation to an

initiative, they can hold their elected officials accountable at the polls or they can further amend

or repeal provisions of the statute by initiative.

Count Five of the Complaint must be dismissed for failure to state a claim upon which

relief may be granted. While the people have the right to alter or reform their government, Utah’s

Constitution requires that this right be exercised by amendment or revision to the Constitution.

The people of Utah, via its Constitution, delegated the redistricting power to the Legislature, and

revocation of this delegation can only be accomplished by amending or revising the constitution,

not by statute. Further, the power of the people to legislate via initiative or referendum is coequal

31
with the power of the Legislature to legislate. Thus, both can, without limitation other than those

expressly provided in the Constitution or by statute authorized by the Constitution, repeal or

modify the legislative action of the other.

CONCLUSION

The Court should dismiss Plaintiffs’ Complaint in its entirety. In this case of first

impression, Plaintiffs seek for the Court to invent new law to prohibit partisan cracking and to,

paradoxically, grant them a remedy of partisan packing. First, and dispositive of Counts One

through Four, the Court lacks subject matter jurisdiction over Plaintiffs’ claims related to

partisan redistricting because they are nonjusticiable political questions and nonjusticiable for

lack of judicially discoverable or manageable standards. Second, Plaintiffs fail to state any claim

upon which relief may be granted against the Individual Legislative Defendants and the

Legislative Redistricting Committee because the Individual Legislative Defendants are protected

by legislative immunity and neither the Individual Legislative Defendants nor the Legislative

Redistricting Committee can provide any of the requested relief. Third, Plaintiffs fail to state any

claim upon which relief may be granted because the Utah Constitution does not contain any

provision requiring the Legislature to draw a district line based on the political affiliations or

preferences of the two largest political parties to the exclusion of all other political parties and

unaffiliated voters. Additionally, the constitutional provisions cited in Counts One through Four

do not prohibit political redistricting, and the constitutional provisions cited in Count Five do not

restrict the Legislature’s plenary power to pass legislation to enact or modify the Utah Code. For

the above reasons, the Court should dismiss Plaintiffs’ Complaint in its entirety.

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DATED this 2nd day of May, 2022.

OFFICE OF LEGISLATIVE RESERCH

AND GENERAL COUNSEL

/s/ John L. Fellows

JOHN L. FELLOWS
Eric N. Weeks
Thomas R. Vaughn
Michael Curtis
Counsel for Legislative Defendants

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Notice to responding party Aviso para la parte que responde
You have a limited amount of time to Su tiempo para responder a esta moción es limitado.
respond to this motion. In most cases, you En la mayoría de casos deberá presentar una
must file a written response with the court respuesta escrita con el tribunal y darle una copia de
and provide a copy to the other party: la misma a la otra parte:
• within 14 days of this motion being • dentro de 14 días del día que se presenta la
filed, if the motion will be decided by moción, si la misma será resuelta por un juez, o
a judge, or • por lo menos 14 días antes de la audiencia, si la
• at least 14 days before the hearing, if misma será resuelta por un comisionado.
the motion will be decided by a
commissioner. En algunos casos debido a un estatuto o a una orden
de un juez la fecha límite podrá ser distinta.
In some situations a statute or court order
may specify a different deadline. Si usted no responde a esta moción ni se presenta a
la audiencia, la persona que presentó la moción
If you do not respond to this motion or podría recibir lo que pidió.
attend the hearing, the person who filed
the motion may get what they requested. Vea la página del tribunal
sobre Mociones para
See the court’s Motions encontrar más información
page for more sobre el proceso de las Para accesar esta página
information about the escanee el código QR
Scan QR code mociones, las fechas límites
motions process, to visit page y los formularios:
deadlines and forms: utcourts.gov/motions-span
utcourts.gov/motions
Finding help Cómo encontrar ayuda
The court’s Finding legal
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(utcourts.gov/help) Scan QR code tribunal Cómo encontrar Para accesar esta página
provides information to visit page ayuda legal escanee el código QR
about the ways you can get legal help, (utcourts.gov/help-span)
including the Self-Help Center, reduced- tiene información sobre algunas maneras de
fee attorneys, limited legal help and free encontrar ayuda legal, incluyendo el Centro de
legal clinics. Ayuda de los Tribunales de Utah, abogados que
ofrecen descuentos u ofrecen ayuda legal limitada,
y talleres legales gratuitos.

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 CERTIFICATE OF FILING

I certify that on this 2nd day of May 2022, I electronically filed the foregoing,

LEGISLATIVE DEFENDANTS’ MOTION TO DISMISS AND MEMORANDUM IN

SUPPORT, with the Clerk of the Court by using the electronic filing system which will send a

notice of electronic filing to the following:

PARR BROWN GEE & LOVELESS Annabelle Harless*

David C. Reymann (Utah Bar No. 8495)* 55 W. Monroe St., Ste. 1925
Briggs Matheson (Utah Bar No. 18050)* Chicago, IL 60603
101 South 200 East, Suite 700 [email protected]
Salt Lake City, Utah 84111 Attorneys for Plaintiffs
(801) 532-7840
[email protected]
[email protected]
Attorneys for Plaintiffs

Troy L. Booher (Utah Bar No. 9419)* OFFICE OF THE ATTORNEY GENERAL
J. Frederic Voros, Jr. (Utah Bar No. 3340)* David N. Wolf
Caroline Olsen (Utah Bar No. 18070)* Lance Sorenson*
341 South Main Street 160 East 300 South, Sixth Floor
Salt Lake City, Utah 84111 P.O. Box 140856
(801) 924-0200 Salt Lake City, Utah 84114-0856
[email protected] [email protected]
[email protected] Attorneys for Defendant Lieutenant Governor
[email protected] Deidre Henderson
Attorneys for Plaintiffs
*Served via Email
CAMPAIGN LEGAL CENTER
Mark Gaber*
Hayden Johnson*
Aseem Mulji*
1101 14th St. NW, Suite 400
Washington, D.C. 20005 /s/ Brooke Bolick
(202) 736-2200 Legal Research Assistant
[email protected] OFFICE OF LEGISLATIVE RESEARCH AND
[email protected] GENERAL COUNSEL
[email protected]
Attorneys for Plaintiffs

35