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SALT LAKE CITY — The ongoing battle over Utah's new tricolor flag is now in federal court.
Supporters of the old, traditional dark blue banner have filed suit against Utah Lt. Gov. Deidre Henderson, arguing that rules and guidelines governing their petition drive to force the flag question to the ballot box were unconstitutional. They face a Feb. 15 deadline to collect 134,298 signatures to force the future of Utah's flag to this year's Nov. 5 ballot, but have so far submitted only 79,026 valid signatures.
"Plaintiffs share a deep concern that efforts to replace the state flag are really efforts to erase history and eliminate symbols of shared values in civil society. Because of this, plaintiffs wish to associate with others, convince the public of their view and restore the Utah flag back to its earlier form," reads the lawsuit, filed Thursday in U.S. District Court in Salt Lake City.
More specifically, Tracie Halvorsen and the Are You Listening Yet Political Action Committee, the plaintiffs in the lawsuit, argue the varied regulations governing the petition process have the effect of violating their free speech rights. The rules, they charge, "hamper the effective advocacy of plaintiffs speaking and associating with others" to get the flag question on the November ballot.
Parallel to the suit, Halvorsen and the committee are seeking a preliminary injunction to keep Henderson from enforcing the Feb. 15 deadline and other petition rules. They seek expedited handling of the case and ask that the petition deadline be moved from Feb. 15 to July 8.
The focus of the new flag foes, who dub their effort the Restore the Utah State Flag movement, is repealing SB31, the 2023 measure that calls for the new banner to become the state flag on March 9. They have been collecting signatures as part of the petition effort since last June.
The new flag, already flying around Utah, features a beehive in the middle, a red band across the bottom, a white band across the middle that's shaped like a mountain range and a blue band across the top. Proponents had touted the change as a way of distinguishing and marketing the state, among other things. The design emerged from a public engagement campaign managed by the Utah Department of Cultural and Community Engagement.
The old flag, the blue one with the state seal in the middle that the plaintiffs favor, would become the "historical state flag" per SB31, still flown at the Utah Capitol complex. Many state flags have similar designs, featuring a particular seal atop a dark blue background.
The Utah Lieutenant Governor's Office has not yet responded in court to the suit and wouldn't comment as the litigation is pending. However, in a Feb. 2 letter from Henderson to the Restore the Utah State Flag lawyer, Kyle Reeder, the lieutenant governor said she can't waive enforcement of the varied guidelines, as sought by the new flag foes in a Jan. 25 letter.
"I acknowledge the significant effort that must be made by initiative sponsors and supporters. My office will continue to make the process as smooth and fair as possible within the parameters of the law. However, I cannot waive or modify the legal requirements you have requested," Henderson wrote in her letter. State law gives her neither the discretion nor the authority, she said, to take the action sought.
Thursday's suit was filed the same day a Utah House committee considered HB436, a measure sponsored by Rep. Phil Lyman, R-Blanding, that, in effect, would repeal SB31 and keep the blue flag as Utah's official banner. Committee members heard arguments on the proposal for about an hour before moving on without offering a recommendation, putting its future in limbo.
Deadlines 'severely limit' efforts
Proponents of the old flag pushed hard against SB31 ahead of its passage last year. Then they unsuccessfully petitioned to get an SB31 repeal question on the 2023 ballot, falling short on the required number of signatures. That set the stage for the second petition effort, now facing the Feb. 15 deadline.
In the suit, the plaintiffs maintain the varied deadlines they face in petitioning "severely limit" signature-gathering efforts.
"The latest Feb. 15, deadline is nearly nine months before the general election on which Restoring the Utah State Flag might appear for a vote," the lawsuit reads. Halvorsen, it goes on, "would like to continue these efforts into the spring and summer when the weather is more hospitable and when more people are out in public."
The suit also says Halvorsen and the Are You Listening Yet PAC would like to hire professional signature-gatherers to help them. Utah law, however, requires they be paid an hourly rate, not per signature, which "increases costs and decreases effectiveness." Moreover, state law says only Utah residents may work as signature gatherers, another hindrance. Halvorsen says in the suit she'd like to work with gatherers from outside of Utah.
The suit also lamented a rule requiring signatures be submitted to county clerks offices for counting no more than 30 days after they are made and other guidelines. "The combined effect of these prohibitions, regulations and arbitrary deadlines prevent Restoring the Utah State Flag or any initiative from having a meaningful chance of being certified for the 2024 general election," it states.
