Bob Bernick's notebook: Lawmakers attempt a dubious trifecta

As first reported by UtahPolicy.com, GOP leaders in the Legislature have decided to go forward with a rewrite of Prop 4, the Better Boundaries citizen initiative that was barely passed by voters in November 2018.

Assuming the bill, to be sponsored by Sen. Curt Bramble, R-Provo, passes -- and leaders tell UtahPolicy.com that it will, and likely with two-thirds votes -- this will complete the initiative re-write cycle: Medical marijuana passed that November and the Legislature rewrote it; Medicaid expansion passed, and the Legislature rewrote it, and the independent redistricting commission passed, and now the Legislature will rewrite it.

GOP leaders realize that the “optics” of rewriting the independent redistricting commission may look bad -- the Republican-controlled Legislature and GOP Gov. Gary Herbert changing voter-created laws time and again.

But House Majority Leader Francis Gibson, R-Mapleton, told UtahPolicy.com: “The voters wanted medical marijuana, and we gave it. They wanted Medicaid expansion, and we gave it, with some controls” for better spending. “And they wanted an independent redistricting commission, and we will give it, also.”

All that is true.

But it’s also true what voters approved will look and work differently after lawmakers weigh in.

In a press release Friday, Better Boundaries officials said they are “extremely disappointed” in the leaders’ move. But if the bill passes by two-thirds -- and Republicans have those numbers in both the House and Senate -- then it is not subject to referendum, as tax reform was.

Gov. Gary Herbert and GOP leaders have said the initiative law has clear constitutional problems. And some of that may be true -- there are concerns that the initiative law brings the chief justice of the Utah Supreme Court into play, while the Constitution says the Legislature will redistrict -- the courts having no say in the creation of a plan.

But the initiative law went to great lengths to restrict gerrymandering -- the practice of redistricting helping one political party or one or more current incumbents.

And it is unclear if the GOP leaders’ bill will address that issue in any viable manner.

Bramble opened a bill file on Friday. So, we have not yet seen the exact language of how GOP leaders plan to change the original citizen initiative law.

But an overview was given to UtahPolicy.com:

-- Key to the changes from the initiative law, now in place, will be how the seven-member commission is picked. Under the initiative, there was a long list of exclusions for possible commissioners aimed at neutrality, and, as the current partisan makeup of the Legislature and governorship provide, there would be four commissioners picked by GOP officeholders, three by Democratic officeholders.

Under the new GOP plan, as I understand it, there would be five commissioners picked by GOP officeholders, two by Democrats -- but at least two commissioners must be political independents, not belonging to any party.

Under the initiative law, for a redistricting plan to be adopted by the seven-member commission, there must be five votes for it, meaning one vote must come from a Democratic-appointed commissioner.

There will be no such super-majority vote in the bill, the commissioners themselves -- presumable by majority vote -- will set their own rules in how they pick “at least three” redistricting plans to recommend to the Legislature. If it is a 4-3 vote under the bill, then all-GOP nominated commissioners could pick the plan(s).

-- Under the initiative law, there are strict guidelines should the Legislature NOT adopt one of the independent commission’s plans. Even letting any individual sue in court to make the Legislature adopt a commission plan.

Those will be gone in the GOP leaders’ bill.

Instead, while the independent commission’s recommendations will be taken seriously by the Legislature, the Legislature will ultimately decide redistricting -- as it has before, and as the Utah Constitution demands.

If the Legislature’s own redistricting committee picks a plan other than one recommended by the independent commission, there will be no legal cause for action other than what has been available in previous legislative redistricting -- and Utah has never been successfully sued in court over any previous redistricting.

And if the 2021 Legislature redraws U.S. House seats and legislative seats that appear to help GOP incumbents, or harm Democratic incumbents, you can bet there will be calls of gerrymandering.

But with changing how the seven-member independent commission is picked, and who does the picking -- even with two independent commissioners who don’t belong to any political party -- I can say now it is more likely that the independent commission may draw some lines favored by GOP lawmakers.

And if that happens, then the Republican-controlled Legislature may well adopt a commission plan -- for it wouldn’t be much different than what they would have drawn themselves from scratch.

Now, GOP leaders have been meeting in good faith quietly with Better Boundary officials -- and the group’s executive director is now Rebecca Chavez-Houck, a former Democratic House member and leader.

UtahPolicy.com Managing Editor Bryan Schott has been dogging the story for weeks, waiting for a final decision by GOP leaders before breaking the story.

He asked Chavez-Houck for comment Thursday night. She declined, saying she would talk to him Friday morning, only to issue a press release instead -- very disappointing action by her -- cheap, cheap stuff.

It was hoped for some time that a complete compromise between the two groups could be found -- one reason for Schott’s patience, not wishing to blow up the negotiations unnecessarily.

But GOP leaders say, while close in reaching a compromise, it appears the final obstacles could not be breached -- thus the reason for moving ahead with a bill this session.

GOP leaders tell UtahPolicy.com that one of the main sticking points is that Better Boundaries wanted the new law to dictate what could and could not be considered -- in the way of partisan makeup/incumbent data -- by the independent commission.

Leaders say the commissioners should set their own restrictions or guidelines, just as the Legislature’s own redistricting committee will, and has done.

I have to say we must wait and see who is put on the new independent commission by the GOP and Democratic legislative leaders and the governor, under the GOP leaders’ rewrite.

And how those new commissioners act in drawing up their guidelines. Will the resulting three plans protect incumbents? Will the plans continue the practice of splitting up Salt Lake City so the Democratic majorities there are stuck with a conservative GOP U.S. House member who doesn’t represent their views at all?

That is certainly the case today, where 2nd District Rep. Chris Stewart loses in the city 5-to-1, only to win in the other, larger, Republican areas by so much that no Democrat can win the 2nd District.

GOP leaders say if they tried to create a more favorable Democratic U.S. House seat, they would be guilty of gerrymandering just for a Democrat -- the state is just so Republican.

But claims by Salt Lake City Democrats that they’ve been disadvantaged in U.S. House redistricting for decades are, I believe, real.

Whether the “new” independent commission will deal with that in any meaningful way will, of course, be the critical test for the new independent redistricting law GOP leaders are now preparing.