Pignanelli & Webb: While nosing around for recent scuttlebutt regarding the referendum petition drives occurring in the state, our research revealed an interesting twist. We then discovered this controversy is percolating deep among some petition advocates.

In 2002, sponsors of Initiative 1 — the Radioactive Waste Control Act — (Frank was the campaign manager) satisfied the then existing requirement to obtain 10 percent of the number of registered voters who cast a ballot in the prior gubernatorial election in at least 20 of the 29 counties. However, the initiative opponents launched an effort to persuade signatories in select counties to rescind their signatures and thus decertify the initiative. Initiative 1 detractors went door-to-door to find a small number of citizens willing to remove their name from the petition, thereby dropping the number of required signatures below the threshold in the lesser populated counties.

(For example, the initiative foes secured signature withdrawals in areas like Wayne, Daggett and Piute counties with little effort. Because the signature deadline had passed, initiative advocates could not respond with more signatures.) Lt. Gov. Olene Walker was forced to deny the initiative for placement on the ballot.

Initiative proponents sued the state on the premise that it was unfair that a handful of individuals in smaller counties could determine the fate of a statewide petition effort. In Gallivan v. Walker, the Utah Supreme Court agreed and stated that a geographic distribution requirement for gathering signatures diluted the rights of urban voters, and struck down the provision mandating signatures on a county basis. (In essence, reaffirming the "one man, one vote" rule.) The next year, the Utah Legislature required that initiatives obtain 5 percent of registered voters in 26 of the 29 Senate districts. Because this was not based on geography, and Senate districts are equally balanced by population, this approach was upheld by the courts.

In state law, a difference exists between initiatives and referendums. An initiative enacts a statute into law, while a referendum amends or repeals something passed by the Legislature. Initiatives and referendums are identified separately, with distinguishing requirements, in Utah code. The referendum regulations have not been altered for years, despite all the activity surrounding initiatives.

The current requirement for a referendum is 10 percent of the number of registered voters (who voted in the prior gubernatorial election) in 15 of the 29 counties. This geographic requirement, as clearly articulated in the Gallivan decision, is null and void. Therefore, the only likely hurdle in current law for the sponsors of a referendum is just 10 percent of the registered voters who voted in the prior gubernatorial election, regardless of where they reside. Obviously, this nuance is prompting intellectual debate amongst legal circles, and entertaining discussions among politicos.