More than 100,000 Utahns signed their support on paper petitions that UEG circulated in the months between August 2009 and August 2010 however, not enough had signed on by April 15, 2010, to meet the November 2010 deadline. At that point, 94,000 signatures were needed, and UEG had gathered just over 73,000 that county clerks were able to certify.
"If the court decides that UEG had no longer than April 15, 2010, to submit signatures, that ends the debate, we lose and go home," Smith said during oral arguments last week. "If the court determines that we had until Aug. 12 of 2010 to gather signatures, then the court must proceed to the next issue."
That next step is complicated by differing interpretations of the law and recent legislation enacted in 2011.
Bridget Romano, solicitor general for the Utah Attorney General's Office, argued on behalf of the state.
"UEG has failed to adhere to the plain language of the initiative act," Romano told justices during last week's court session, "and [has failed] to follow the orderly and efficient process set up in that act for qualifying a ballot initiative."
Moreover, the Legislature is tasked with establishing the ground rules for facilitating the petition process, Romano added.
"It is a Herculean task to verify [94,000] signatures," Romano said.
The 2010 gubernatorial election could also be used as the yardstick to measure sufficiency for November 2012, Smith said. Another possibility for the Supreme Court justices to choose is the new threshold set by the Legislature in 2011, requiring that the number of required signatures be based on voters in the most recent presidential election.
In early July, 3rd District Judge Todd Shaunessy ruled that the new 2011 standard should apply, even though UEG finished its signature-gathering several months before, in August 2010. So UEG sought recourse in the state's high court, but its justices are running out of time for deliberations due to deadlines for printing and mailing overseas and absentee ballots for this November's election.
Under the 2008 presidential election threshold, Smith said, the UEG initiative is decidedly dead. However, using the 2008 or 2010 gubernatorial numbers, the measure could possibly survive and go up for a vote of the people this November.
If passed by popular vote, the UEG petition would enact broad campaign finance reforms for state legislative races and would also install an independent ethics commission to screen complaints against sitting lawmakers.
In 2010, with the threat of the UEG initiative nipping at its heels, Utah's Legislature enacted its own more mild campaign-finance reforms, also installing an independent ethics panel that uses a higher bar to screen complaints against lawmakers. That legislation also invalidated complaints leaked to the press.
Lawmakers also fought back in 2010 by passing a law that made it easier for people to remove their names from petitions they later believed they had signed in error.
To add to the legal conundrum, UEG gathered enough electronic signatures to easily clear the 2008 gubernatorial hurdle, but current initiative law only considers the use of paper signatures. If and to what degree that issue will be addressed by the court remains to be seen.
In a phone interview Sunday, UEG attorney David Irvine said a recent audit of the signature packets found 625 names that the Utah County clerk had disqualified because the packet circulators were not registered voters. However, no such requirement exists in state law, Irvine said.
That audit also found an additional 200 signatures that Irvine also believes were wrongly disqualified for various reasons outside of state law.
UEG filed an affidavit with Shaunessy's court over their "hanging chads," Irvine said, and a ruling is pending on those signatures that could ultimately put UEG over the top in three more state Senate districts, allowing their paper signatures to qualify under the 2008 gubernatorial standard.
Utah's top court is expected to issue its opinion by mid-August, in just enough time to prepare ballots and voter information pamphlets for November's showdown.