Voucher Referendum not dead, but those opposed to it do raise some interesting questions

There was a flurry of articles in this morning's papers regarding the possibility the voucher referendum just launched to overturn House Bill 148 creating the most extensive voucher program in the country may be dead almost before it really got started. See the Deseret Morning News' New fight over vouchers, the Salt Lake Tribune's Loophole may ensure vouchers go forward, or the Daily Herald's Anti-voucher drive may be dead.

Voucher supporters seemed almost gleeful arguing those initiating the referendum should have filed to overturn House Bill 174, which amended the original law- House Bill 148- creating the voucher program in the first place. "It appears they filed a referendum against the wrong piece of legislation" crowed Senate Majority Leader Curtis Bramble in the Salt Lake Tribune. In the Deseret Morning News Bramble argued "The only big difference [between the two bills] that I am aware of is the hold harmless...The money would be there, but there would not be a statutory obligation" to spend the money on the voucher program.

This whole business about a "loophole" or filing the referendum against the wrong bill smells like a ploy to raise questions in voters' minds about the value of bothering to sign the referendum petition. Irresponsible headlines like the Daily Herald's "Anti-voucher drive may be dead" play right into voucher proponents hands in that regard.

However, there are at least three major problems voucher proponents have: 1) HB 148 is the relevant legislation when it comes to vouchers; 2) voucher opponents could not have filed a petition against HB 174 if they had wanted to, and; 3) Senator Bramble and others may have inadvertently pointed to a serious constitutional flaw in Utah's referendum process.

Contrary to Senator Bramble's arguments, the fiscal notes to the two bills make clear if you repeal HB 148 there is no money to support the voucher program. The fiscal note for HB 148 estimates costs of $100,000 for FY 2007, $9,300,000 for FY 2008, and $12,400,000 for FY 2009. All of these monies come from the general fund. The HB 148 fiscal note goes on to state "Individuals may benefit from scholarships awarded under this bill in amounts ranging from $500 to $3,000 depending upon income level."

So what does the HB 174 -Education Voucher Amendments- fiscal note state? Appropriations never exceed $100,000 in any fiscal year and it reads in part "Due to coordination of this bill with 'Education Vouchers' (HB 148, 2007 General Session), enactment of HB 174 alone will not result in direct, measurable costs and/or benefits for individuals, businesses, or local governments."

It is obvious from these two fiscal notes repealing HB 148 as recommended by the referendum petition leaves no money for vouchers, HB 174 notwithstanding. It is just that simple. All this talk of a "loophole" or the referendum petition drive being "dead" amounts to a red herring designed to discourage people from signing the petition.

Regarding the ability to file a referendum petition against HB 174, the Utah Constitution specifically states a bill passing by more than 2/3 vote in both the House and Senate cannot be challenged through the referendum process. HB 148 squeaked by on one vote. HB 174 amending HB 148 passed by more than the 2/3 vote preventing a referendum challenge. Furthermore, petitions must be filed within five days of the close of the legislative session. Huntsman hadn't even signed HB 174 at that point, making filing impossible.

This leads to the constitutional question regarding the referendum process. If Article VI, Section 1 of the Utah Constitution guarantees Utah voters the right to submit any law passed by the legislature except those passing by 2/3 or more in both the House and Senate to a vote of the people, how can a statute giving Utah voters only five days to submit the petition before they even know whether the governor intends to sign the bill be constitutional? A governor might signal his/her intent to veto, allow the five day filing period to expire, and then sign a controversial bill thus avoiding a referendum challenge. Furthermore, it is not clear the Lt. Governor would even grant the petition in light of the fact the bill has not yet become law with the Governor's signature.

The Utah Democratic Party would be curious to hear from Senator Bramble and others how a bill with no fiscal impact can be considered a substitute for one requiring many millions from the general fund to be implemented. We also wonder what the Senate Majority Leader's thoughts are on a referendum process that, on the face of it at least, fails to grant the citizens of Utah the constitutionally promised recourse of a referendum due to an excessively short filing period.