Monday, March 19, 2007

Voucher Referendum Questions

The issue about what will happen to the voucher program if the referendum is able to get enough signatures to put it to a vote and if HB148 is overturned by the voters is an interesting one. And a gamble for the voucher opponents. It seems to be a foregone conclusion by the voucher proponents that it would not dissolve the voucher program because of HB174.
Some questions and thoughts:

  1. HB174 is titled as Education Voucher Amendments and modifies code that was modified by HB148. Normally, I would think that if a bill upon which an amendment as based is not signed into law by the governor, any amendments passed on that bill would also be null and void. However, what happens when the original bill is signed into law and then is 'repealed' in some other manner? For example, what would happen if HB148 was declared unconstitutional (I'm not saying it would be, just playing devil's advocate). Would HB174 stand (assuming no constitutional challenge)? I'm not a lawyer, but it doesn't seem like it would. Or would the challenge have to be against the net effect from the legislative session, meaning the combination of HB148 and HB174?
  2. There seems to be a problem with our referendum laws which requires referendums to be filed against laws within 5 days of the end of session, but apparently don't allow for referendums to be filed against bills that haven't been signed into law yet. That prevents referendums from being filed against certain bills that otherwise, if they were passed and signed earlier in the session, would have been eligible.
  3. If everything is how the voucher proponents claim, and the voucher program is here regardless of the referendum, I'm a bit suspicous of what happened in our Legislature. Perhaps I am giving too much credit to our legislators, but it looks like a very carefully devised plan to ensure that the voucher program would survive some of the challenges, as long as they could get the original bill to pass. Think about it. Attempt to pass a bill early in the session. Get the governor to sign it quickly. Pass another bill amending the first one late in the session, late enough so that the governor wouldn't have to sign it until after 5 days passed, making it referendum-proof. Put into the second bill additional provisions that would make it very attractive to voucher opponents, if they assumed that the original bill stood. Get it to pass by greater than 2/3. Done. Door shut. Case closed.
  4. The sponsor of HB148, Representative Urquart couldn't understand why anyone would vote against HB174 when it added provisions that opponents had asked to be added to HB148. He publicly called out the Democratic members of the House to explain their reasoning. Well, Representative Urquart, you have your answer. If the voucher portion is unable to be repealed through referendum because of HB174, then more of the opponents should have followed their lead and voted against HB174. If it had not passed by a 2/3 majority, then it might have been possible to file the referendum against it also (except for that issue listed in #2). Your questioning of their vote makes me think you weren't as smart as I thought you might have been.
  5. Then again, it was asked why you didn't put the HB174 provisions in the original HB148 bill. Several Democratic representatives apparently tried to amend HB148 to add the HB174 provisions, but were denied. This makes me think you might have been as smart as I thought, and this entire thing was planned and intentional but that other representatives were duped and didn't understand the full effect of their vote (probably not the first time that has happened).
  6. This whole mess may require a court challenge to resolve. And that probably wouldn't be able to happen until the referendum successfully repealed HB148 (assuming that happens). A court would have to decide what would happen to HB174 if HB148 was gone. Would the voucher program survive and only the clauses that were not amended by HB174 die? Or is HB174 dependent on HB148 for existence and be gone if HB148 was gone? I would guess that question would make its way to the Utah Supreme Court and no one can know for sure which way would be ruled. The voucher opponents have the "Hold Harmless" money (one of the HB148 sections that was not amended by HB174) at risk if they were to lose the court challenge. So this really is a big gamble by the Utah for Public Education folks. I hope they got lots of solid legal advice before they started this ball rolling.

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