## Facts

- Utah’s constitution permits lawmaking by voter initiative and referendum.
- Utah voters approved a 1998 constitutional amendment (effective Jan. 1, 1999) requiring that initiatives addressing the “taking of wildlife” or the “season for or method of taking wildlife” must pass by a two-thirds vote, rather than a simple majority.
- Animal-protection and environmental organizations, along with individual Utah voters and officials, alleged they wished to pursue wildlife-related initiatives but were subjected to a uniquely higher vote threshold.
- Plaintiffs sued state election officials, asserting the supermajority rule violated the First Amendment by burdening initiative-related political activity and by discriminating based on content or viewpoint.
- The district court held plaintiffs had standing but rejected the First Amendment challenge and upheld the amendment.
- Plaintiffs appealed on the merits; the State cross-appealed on standing; the Tenth Circuit heard the case en banc.

## Issues

1. Whether the plaintiffs had Article III standing to bring a facial First Amendment challenge to Utah’s wildlife-initiative supermajority requirement.
2. Whether Utah’s two-thirds vote requirement for wildlife-related initiatives violates the First Amendment by burdening political expression or by imposing content- or viewpoint-based discrimination.
3. Whether the First Amendment overbreadth doctrine applies to a rule that changes only the vote threshold for enactment of certain initiatives.

## Decision

- The en banc Tenth Circuit held plaintiffs had standing because they were subject to a more demanding electoral rule for the type of initiatives they sought to sponsor, and the injury was traceable to and redressable by invalidation of the provision.
- The court affirmed the judgment upholding the supermajority requirement, concluding it did not violate the First Amendment.
- The court rejected the content- and viewpoint-discrimination theories because the provision classified legislation by subject matter without restricting advocacy and applied equally to all positions within wildlife policy debates.
- The court held overbreadth review was inapplicable because the amendment regulated lawmaking procedures (vote thresholds), not speech or expressive conduct.

## Legal Principles

- The federal Constitution does not guarantee a right to legislate by initiative; initiatives exist by state law, and states retain broad authority to structure their mechanics.
- A rule that sets the percentage of votes required for enactment regulates governmental decision procedures, not speech, where it leaves unchanged the ability to speak, associate, petition, campaign, and persuade voters.
- Subject-matter distinctions in enactment rules are not First Amendment content regulation when they do not target speakers or messages and do not limit expressive activity.
- Facial First Amendment overbreadth doctrine is generally limited to laws that regulate speech or expressive conduct and risk chilling protected expression; it does not apply to vote-threshold rules that do not regulate expression.

## Conclusion

The Tenth Circuit upheld Utah’s constitutional requirement that wildlife-related initiatives obtain a two-thirds majority, holding that the provision regulates only the state’s lawmaking decision rule and does not burden First Amendment-protected advocacy, while also confirming that the plaintiffs had standing to challenge the rule.


Initiative & Referendum Inst. v. Walker, 450 F.3d 1082 (10th Cir. 2006)