Gallivan v. Walker

2002 UT 89, 54 P.3d 1069, 455 Utah Adv. Rep. 3, 2002 Utah LEXIS 117, 2002 WL 1968214

Opinions

RUSSON, Justice:

{1 John W. (Jack) Gallivan, Michael D. Gallivan, Frank R. Pignanelli, Phyllis Soren-son, Susan M. Kuziak, and Linda Sue Dickey (collectively, "Gallivan") seek an extraordinary writ from this court requesting the following relief: (1) a declaration that Utah's multi-county signature requirement for placing an initiative on the ballot is unconstitutional, (2) a declaration that their initiative petition was sufficient under Utah Code seetion 20A-7-207(2), and (8) an order compelling respondent Lieutenant Governor Olene Walker ("lieutenant governor") to accept and file the petition and to place the initiative on the 2002 general election ballot. Gallivan v. Walker, 2002 UT 73, ¶ 1, 54 P.3d 1066. We grant the extraordinary writ and order the lieutenant governor to accept and file the petition and place the initiative on the 2002 general election ballot.

BACKGROUND

12 The facts underlying and relevant to this petition for an extraordinary writ are undisputed.¹ Certain citizens of the State of Utah sponsored a proposed initiative known as the Radioactive Waste Restrictions Act (the "initiative") to be placed on the 2002 general election ballot. The sponsors of the proposed initiative included petitioners Michael Gallivan, Frank R. Pignanelli, Phyllis Sorenson, and Susan M. Kuziak.

T3 On April 10, 2002, the proposed initiative was filed with the lHeutenant governor. On April 15, 2002, the Heutenant governor approved the initiative for circulation and issued circulation sheets in conformity with Utah Code section 20A-7-204. On or after April 15, 2002, the initiative's sponsors printed initiative packets and the sponsors commenced the circulation process of soliciting registered voters' signatures to obtain a sufficient number of signatures to have the initiative placed on the 2002 general election ballot.

T4 To qualify the initiative for placement on the statewide ballot, the sponsors were required to obtain a specific number of signatures statewide and in each of more than two-thirds of the state's counties. To satisfy the statewide signature requirement,

[al person seeking to have an initiative submitted to a vote of the people for approval or rejection shall obtain:

() legal signatures equal to 10% of the cumulative total of all votes cast for all candidates for governor at the last regular general election at which a governor was elected ....

Utah Code Anna. § (Supp. 2001). Pursuant to this requirement, the lieutenant governor determined that the sponsors were required to obtain a statewide minimum of 76,180 certified signatures in order to qualify the initiative for placement on the ballot.

T5 In addition, to get the initiative placed on the ballot, the initiative's sponsors had to satisfy a multi-county distribution requirement: The sponsors had to obtain signatures from registered voters in each of at least 20 of Utah's 29 counties equal to 10 percent of all the votes cast for governor during the last gubernatorial election in the respective county in which the votes for governor were cast. Id. § 20A-7-201(2)(a)(ii) (Supp.2001). Spe cifically, this multi-county signature requirement provides that the sponsors must obtain

from each of at least 20 counties, legal signatures equal to 10% of the total of all votes cast in that county for all candidates for governor at the last regular general election at which a governor was elected.

Id.

T6 Between April 15 and June 1, 2002, the initiative's sponsors obtained over 130,000 signatures, purportedly the largest number of signatures ever gathered during the cireu-lation of an initiative petition in Utah. On June 3, 2002,² the initiative's sponsors delivered the signed and verified initiative packets to each of the county clerks of the counties in which the respective initiative packets were circulated.

T7 By July 1, 2002, the county clerks were required to verify that the signers are registered voters, certify on the petition that each signature is that of a registered voter, and deliver all of the packets to the lieutenant governor. Id. § 20A-7-206(8) (Supp.2001). From June 1 until the date on which each of the county clerks sent the petitions to the lieutenant governor, Utah law permitted voters that signed the initiative petition to remove their signatures from the petition. Id. § 20A-T-205(8)(a) (Supp.2001).

T8 After the sponsors delivered the packets to the county clerks, opponents of the initiative, including Utahns Against Unfair Taxes, began contacting the petition signers to encourage them to remove their signatures from the petition. This campaign focused on signers residing in Utah's rural, sparsely populated counties, where fewer signature removals were required to cause the number of remaining signatures to fall below the number required in the county pursuant to the multi-county signature requirement.

T9 Before the county clerks sent the signatures to the lieutenant governor, a sufficient number of signers from rural counties, approximately 3,000, removed their signatures from the initiative petition, thus disqualifying the initiative from being placed on the ballot for failure to satisfy the multi-county signature requirement. In fact, after the signatures were removed, the sponsors satisfied the multi-county signature requirement in only 14 of Utah's 29 counties, 6 counties short of the required 20.

110 The aggregate population of the 14 counties in which the sponsors satisfied the multi-county signature requirement is 87.14 percent of the state's overall population. Comparatively, the aggregate population of the other 15 counties is less than 18 percent of the state's total population. In addition, more than three-fourths of the state's population is concentrated in the 4 Wasatch Front counties of Weber, Davis, Salt Lake, and Utah. Indeed, if the sponsors had obtained only a combined 147³ additional signatures in 6 specific counties of the 15 counties in which the sponsors did not satisfy the individual county requirement (Beaver, Daggett, Garfield, Kane, Piute, and Wayne)-in which only 21,651 people, or less than one percent of the state's overall population, reside-then the sponsors would have satisfied the multi-county signature requirement.

{11 Even after the names were removed under Utah Code section 20¢A-7-205(8)(a), the state's county clerks certified and delivered an aggregate statewide total of 95,974 signatures of registered voters to the lieutenant governor, satisfying the statewide minimum 10 percent signature requirement of 76,180. Despite exceeding the statewide 10 percent requirement, on July 5, 2002, the lieutenant governor declared the initiative petition to be legally insufficient to be placed on the ballot because the sponsors failed to meet the multi-county signature requirement of Utah Code section 20A-7-201(2)(a)(ii).

112 On July 16, 2002, Gallivan petitioned this court for an extraordinary writ pursuant to Utah Code section 20A-7-207(4). In the petition, Gallivan contends that Utah's multi-county signature requirement is unconstitutional under (1) the equal protection clause of the Fourteenth Amendment to the United States Constitution, (2) the uniform operation of laws provision of article I, seetion 24 of the Utah Constitution, and (8) the free speech clauses of the First Amendment to the United States Constitution and article I, section 15 of the Utah Constitution.⁴ Gal-livan argues that the multi-county signature requirement is unconstitutional because it discriminates against registered voters residing in urban counties and that the removal provision exacerbates that discrimination by permitting just a few registered voters living in rural, less populated counties to remove their signatures from the petition to thwart an entire statewide initiative petition.

113 In addition to a brief filed by the lieutenant governor in opposition to Galli-van's petition for an extraordinary writ, we permitted Gene Davis, Peter C. Knudson, Howard A. Stephenson, Michael G. Wad-doups, James R. Gowans, and Utahns Against Unfair Taxes (collectively, "interve-nors") to file a brief opposing Gallivan's petition, and we permitted the Utah Legislature to file an amicus curiae brief relating to CGallivan's petition.

1 14 In her brief, the lieutenant governor argues that the multi-county signature requirement burdens neither Gallivan's free speech rights nor Gallivan's equal protection rights, that the multi-county signature requirement is sustainable as a general initiative regulation, and that the purposes of the multi-county signature requirement justify it. Further, the lieutenant governor contends that if the multi-county signature requirement is unconstitutional, then the requirement is not severable from the rest of the initiative enabling statute and that therefore the entire statute would have to be struck down as unconstitutional.

I 15 Intervenors contend ⁵ that the multi-county signature requirement is a reasonable, and therefore a constitutional, implementation of Utah's initiative process, that the multi-county signature requirement does not implicate Gallivan's free speech rights, and that even if the multi-county signature requirement is unconstitutional-which they contend it is not-the requirement is not severable from the statewide 10 percent signature requirement, thereby precluding this court from granting Gallivan the remedy Gal-livan seeks in the petition for an extraordinary writ to have the initiative placed on the ballot.

116 The legislature, in its amicus brief, endorsed the lieutenant governor's contentions that the multi-county signature requirement is constitutional under both the federal and state constitutions. Further, the legislature contends that the multi-county signature requirement of subsection (2)(a)(ii) of section 20A-T-201 cannot be severed from "the remainder of Subsection (2)(a) without severely distorting or altogether destroying legislative intent with respect to the numbers of voters required to place a statewide initiative on the ballot," that if this court declares any portion of the statute unconstitutional and severs it from the remainder, then this court would be unconstitutionally rewriting the statutory framework governing initiatives, and that therefore, if the multi-county signature requirement is unconstitutional, "the exelusive remedy should be to refer the statute back to the Legislature to make whatever modifications the Legislature determines appropriate." The legislature also contends that if the multi-county signature requirement is declared unconstitutional, a new timetable for the initiative process will have to be created and that the legislature, rather than this court, should set that timetable.

(17 After oral argument, we issued an opinion in which we determined that we have original jurisdiction to consider this matter as a petition "for an extraordinary writ pursuant to article VIII, section 3 of the Utah Constitution." Gallivan, 2002 UT 73 at ¶ 4, 54 P.3d 1066. In that opinion, we solicited supplemental briefing and expedited the briefing process, id. at 115-6, requesting

additional briefing from the parties on two questions: (1) What is or should be the standard for determining the freedom of expression and equal protection issues under the Utah Constitution? (2) What considerations affect the severability question when all portions of the initiative statute (the geographic distribution requirements, the percentage requirements, and the "signature rescission" provisions) are considered as a whole and separately?

Id. at 11 5.

118 Gallivan, in the supplemental brief, contends that the multi-county signature requirement is unconstitutional under the uniform operation of laws and free speech provisions of the Utah Constitution, regardless of whether the requirement is analyzed under heightened serutiny or under less stringent serutiny, although Gallivan maintains that heightened serutiny is appropriate. Additionally, Gallivan contends that the multi-county signature requirement can be freely severed from the remainder of the statewide initiative statute.

119 Calling for a balancing test to determine which level of serutiny should be applied to Gallivan's arguments under the Utah Constitution, the lieutenant governor contends that because any impact to Gallivan's fundamental rights relating to this case is not severe and is general, nondiscriminatory, and regulatory and because the state's interests in this case justify the multi-county signature requirement, it should be subjected to reasonable basis serutiny and should be upheld. Similarly, intervenors contend that "the appropriate level of serutiny [under the uniform operation of laws and free speech provisions of the Utah Constitution] is the lowest" in this case and that because the multi-county signature requirement passes constitutional muster under this level of serutiny, the requirement should not be declared unconstitutional. Additionally, supplementing their contentions regarding severability, both the Heutenant governor and intervenors maintain that provisions of the initiative statute are not severable. Finally, intervenors contend that any challenge to the signature removal provision either is waived or has become moot.

ANALYSIS

120 Gallivan petitions this court for an extraordinary writ, seeking to have the mul-ti-county signature requirement of Utah Code section 20A-7-201(2)(a)(ii) declared unconstitutional and to have this court order the lieutenant governor to place the initiative on the 2002 general election ballot. Accordingly, we must review whether the multi-county signature requirement violates the uniform operation of laws provision of the Utah Constitution, the equal protection clause of the Fourteenth Amendment, and the free speech clauses of both the United States and Utah Constitutions.

T21 Before doing so, however, we must first explain how the people's right to legislate by initiative correlates with and fune-tions in our constitutional state government system and how the legislatively created mul-ti-county signature requirement relates to the implementation of the people's initiative right. Long ago, this court explained:

[Glovernment ... is an organization created by the people for their own purposes, to wit, for governmental purposes. As such, the government has powers [that] are strictly limited by the constitution.... The State of Utah ... was conceived of dalliance between the Congress of the United States and the people of the Territory of Utah. The Congress passed an act, known as the Enabling Act, "to enable the people of Utah to form a constitution and State government." As a result thereof, the people of Utah conceived and gave birth to Siamese twins: A constitution and the State of Utah, inseparable unless both shall die.

Duchesne County v. State Tax Comm'n, 104 Utah 365, 375-76, 140 P.2d 335, 339-40 (1943) (quoting Enabling Act of July 16, 1894, ch. 138, Statutes at Large 107, reprinted in 1A Utah Code Ann. (1991)).

22 The government of the State of Utah was founded pursuant to the people's organic authority to govern themselves. The constitution crafted and ratified by the people of Utah unequivocally provides:

All political power is inherent in the people; and all free governments are founded on their authority for their equal protection and benefit, and they have the right to alter or reform their government as the public welfare may require.

Utah Const. art. I, § 2 (emphasis added); see also Duchesne County, 104 Utah at 376, 140 P.2d at 340.

128 In conformity with this principle, the Utah Constitution vests the people's sovereign legislative power in both (1) a representative legislature and (2) the people of the State, in whom all political power is inherent. Utah Const. art. VI, § 1(1) (Supp.2001); see also Utah Const. art. I, § 2; Duchesne County, 104 Utah at 376, 140 P.2d at 340. Pursuant to article VI, section 1 of the Utah Constitution, the people exercise their direct legislative power through initiatives and re-ferenda. Utah Const. art. VI, § 1. Article VI, section 1 is not merely a grant of the right to directly legislate, but reserves and guarantees the initiative power to the people. Dewey v. Doxey-Layton Realty Co., 3 Utah 2d 1, 3, 277 P.2d 805, 806 (1954); see also Shriver v. Bench, 6 Utah 2d 329, 330 n. 1, 313 P.2d 475, 476 n. 1 (1957); Halgren v. Welling, 91 Utah 16, 21, 63 P.2d 550, 552 (1936) ("The right of direct legislation is in the people."); Urevich v. Woodard, 667 P.2d 760, 762 (Colo.1983) (en banc) (stating that initiative power under Colorado Constitution is "'a reservation of power by [the people] for themselves'" (quoting McKee v. City of Louisville, 200 Colo. 525, 616 P.2d 969, 972 (1980))). The power of the legislature and the power of the people to legislate through initiative and referenda are coequal, coextensive, and concurrent and share "equal dignity." Utah Power & Light Co. v. Provo City, 94 Utah 203, 235-36, 74 P.2d 1191, 1205 (1937) (Larson, J., concurring) (stating that "by the initiative process [under the Utah Constitution] the people [are] a legislative body coequal in power and with superior advantages to the Legislature"); see also Dewey, 3 Utah 2d at 4, 277 P.2d at 807 (noting that electors' power to pass legislation via initiative is same as power of legislature); accord Manduley v. Superior Court, 27 Cal.4th 537, 117 Cal.Rptr.2d 168, 41 P.3d 3, 13 (2002); Commonwealth v. Leno, 415 Mass. 835, 616 N.E.2d 453, 457 (1993); State ex rel. Goodman v. Stewart, 57 Mont. 144, 187 P. 641, 643 (1920); State ex rel. Stenberg v. Moore, 258 Neb. 199, 602 N.W.2d 465, 474 (1999); Wyo. Nat'l Abortion Rights Action League v. Karpan, 881 P.2d 281, 285 (Wyo.1994).

124 The reserved right and power of initiative is a fundamental right under article VI, section 1 of the Utah Constitution. Shriver, 6 Utah 2d at 332, 313 P.2d at 480; see also Loonan v. Woodley, 882 P.2d 1380, 1383-84 (Colo.1994) (en banc). For decades, we have recognized that the right to vote is a fundamental right. Pub. Employees' Ass'n v. State, 610 P.2d 1272, 1273 (Utah 1980). Indeed,

[nlo right is more precious in a free country than that of having a voice in the election of those who make the laws under which, as good citizens, we must live. Other rights, even the most basic, are illusory if the right to vote is undermined. Our Constitution leaves no room for classification of people in a way that unnecessarily abridges this right.

Reynolds v. Sims, 377 U.S. 533, 560, 84 S.Ct. 1362, 12 L.Ed.2d 506 (1964).

125 Initiative is the power of a voter to directly legislate via exercising the right to vote. Stavros v. Office of Legislative Research & Gen. Counsel, 2000 UT 63, ¶ 19, 15 P.3d 1013; Halgren, 91 Utah at 21, 63 P.2d at 552; see also Shriver, 6 Utah 2d at 330, 313 P.2d at 476. Like the right to vote generally, the initiative right guarantees participation in the political process. Loonan, 882 P.2d at 1383-84. It is a constitutionally guaranteed right that "form[s] an implicit part of the life of a free citizen in a free society." ⁶ Pub. Employees' Ass'n, 610 P.2d at 1273. The initiative right encourages political dialogue and allows the general populace to have substantive and meaningful participation in enacting legislation that impacts society. It is democracy in its most direct and quintessential form.

1 26 The voters' right to initiative does not commence at the ballot box: The voters' right to legislate via initiative includes signing a petition to get the proposed initiative on the ballot. Signing a petition is inextricably connected to the voters' right to vote on an initiative because it serves a gatekeeping function to the right to vote. Accordingly, "Ithe use of ... petitions ... to obtain a place on the [state's] ballot is an integral part of [its] elective system." Moore v. Ogilvie, 394 U.S. 814, 818, 89 S.Ct. 1493, 23 L.Ed.2d 1 (1969). Recognizing that ballot access is essential to fundamental rights, the United States Supreme Court explained:

Restrictions on access to the ballot burden two distinct and fundamental rights, "the right of individuals to associate for the advancement of political beliefs, and the right of qualified voters, regardless of their political persuasion, to cast their votes effectively."

Illinois State Bd. of Elections v. Socialist Workers Party, 440 U.S. 173, 184, 99 S.Ct. 983, 59 L.Ed.2d 230 (1979) (quoting Williams v. Rhodes, 393 U.S. 23, 30, 89 S.Ct. 5, 21 L.Ed.2d 24 (1968)). In essence, both the ability to commence the initiative process by signing a petition and the ultimate act of casting a vote on a proposed initiative are integral and correlative parts of a proposed initiative's "election process," Moore 394 U.S. at 818, 89 S.Ct. 1493, that is, the right to cast a vote in the initiative context is dependent on the proposed initiative garnering sufficient signatures to qualify the proposed initiative for placement on the ballot. The right to vote on an initiative cannot exist without the voters' unfettered right to legislate through initiative, which necessarily begins with the circulating and signing process.

127 Because the people's right to directly legislate through initiative and refer-enda is sacrosanct and a fundamental right, Utah courts must defend it against eneroachment and maintain it inviolate. See Cope v. Toronto, 8 Utah 2d 255, 259, 332 P.2d 977, 979 (1958) (per curiam) (noting that statute enabling people's right to initiative must be given construction that "effectuatefs] its purpose that the people be permitted to vote and express their will on proposed legislation"); see also Legislature v. Eu, 54 Cal.3d 492, 286 Cal.Rptr. 283, 816 P.2d 1309, 1313 (1991) (en banc) ("[It is our solemn duty to jealously guard the precious initiative power, and to resolve any reasonable doubts in favor of its exercise."); Associated Home Builders of Greater Eastbay, Inc. v. City of Livermore, 18 Cal.3d 582, 135 Cal.Rptr. 41, 557 P.2d 473, 477 (1976) (en banc) (same); Urevich, 667 P.2d at 762 ("Any law that limits this "fundamental right at the very core of our republi can form of government' is viewed with the closest scrutiny." (quoting McKee, 616 P.2d at 972)); State ex rel. Stenberg v. Moore, 258, Neb. 199, 602 N.W.2d 465, 474 (1999) (stating that right of initiative is "precious" and "is one which the courts are zealous to preserve to the fullest tenable measure of spirit as well as letter" (quotations omitted)); In re Referendum Pet. No. 18, State Question No. 437, 1966 OK 152, 417 P.2d 295, 297 ("The right to petition for a vote of the people by Initiative and Referendum provided by Art. 5, § 2, of the Constitution of Oklahoma is a sacred right to be carefully preserved."); Bernstein Bros., Inc. v. Dep't of Revenue, 294 Or. 614, 661 P.2d 537, 539 (1983) (holding that Oregon Supreme Court "has consistently defended [the people's powers of referendum and initiative] against any eneroachment"). Because of the fundamental nature of the right of initiative and its significance to the political power of registered voters of the state, the vitality of ensuring that the right is not effectively abrogated, severely limited, or unduly burdened by the procedures enacted to enable the right and to place initiatives on the ballot is of paramount importance.

$28 Article VI, section 1 requires the legislature to enact legislation to enable the people to exercise their reserved power and right to directly legislate through initiative. See Owens v. Hunt, 882 P.2d 660, 661 (Utah 1994). This section provides in pertinent part:

(2)(a)() The legal voters of the State of Utah in the numbers, under the conditions, in the manner, and within the time provided by statute, may:

(A) initiate any desired legislation and cause it to be submitted to the people for adoption upon a majority vote of those voting on the legislation ....

Utah Const. art. VI, § 1@2)(a)@)(A) (Supp. 2001). Accordingly, the legislature can and is required to enact legislation that implements and enables the exercise of the people's right to initiative so long as it does not pass laws that unduly burden or diminish the people's right to initiate legislation. See Owens, 882 P.2d at 661 (acknowledging legislature's latitude in enacting initiative regulations that do not "discriminat[e]l" or impose "unreasonable restraint on rights of electorate" to legislate through initiative); see also Loonan, 882 P.2d at 1386-87 (stating that legislature's enactments that will diminish, impair, limit, or destroy constitutional initiative right are impermissible); Wolverine Golf Club v. Hare, 24 Mich.App. 711, 180 N.W.2d 820, 830 (1970) (noting that legislature can enact statutes that "place certain ground rules on the petitioning for initiative in order to facilitate the enormous task of verifying the signatures on petitions," but it cannot "create unnecessary obstacles to restrict the lawful use of initiative"); Bernstein Bros., Inc., 661 P.2d at 539 ("The only power the legislature has is to pass legislation that aids or facilitates the [initiative power] intended by the constitution."); cf Ark. Const. amend. 7 ("No legislation shall be enacted to restrict, hamper or impair the exercise of the right [of initiative] reserved to the people.").

29 Complying with this constitutional directive to enact enabling legislation, the Utah Legislature passed Utah Code sections 20A-7-201 to -218, which detail Utah's procedures for conducting statewide initiative elections. See generally Bigler v. Vernon, 858 P.2d 1390, 1391-92 (Utah 1998). The legislature, in setting the minimum number of signatures required for a proposed initiative to be placed on the ballot, requires the sponsors to obtain both a specific number of signatures statewide and a specific number of signatures in each of more than two-thirds of the state's counties. To satisfy the statewide signature requirement,

[a] person seeking to have an initiative submitted to a vote of the people for approval or rejection shall obtain:

(i) legal signatures equal to 10% of the cumulative total of all votes cast for all candidates for governor at the last regular general election at which a governor was elected ....

Utah Code Ann. § (Supp. 2001). To satisfy the multi-county signature requirement,

[a] person seeking to have an initiative submitted to a vote of the people for approval or rejection shall obtain:

++,

(i) from each of at least 20 counties, legal signatures equal to 10% of the total of all votes cast in that county for all candidates for governor at the last regular general election at which a governor was elected.

Id. § 20A-7-20102)(a)@).⁷ Having this backdrop in mind, we now turn to Gallivan's constitutional challenges to the multi-county signature requirement.

I. EQUAL PROTECTION AND UNIFORM OPERATION OF LAWS

130 Gallivan challenges the multi-county signature requirement provision of the Utah initiative enabling statute, Utah Code Ann. § 20A-7-201(2)(a)(i), on the grounds that it violates both the uniform operation of laws provision of the Utah Constitution, Utah Const. art. I, § 24, and the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution, U.S. Const. amend. XIV, § 1.

181 Article I, section 24 of the Utah Constitution states: "All laws of a general nature shall have uniform operation." Utah Const. art. I, § 24. The Fourteenth Amendment to the United States Constitution prohibits a state from enacting laws that deny "any person within its jurisdiction the equal protection of the laws." U.S. Const. amend. XIV, § 1. Despite their dissimilar language, these two constitutional provisions "embody the same general principle: persons similarly situated should be treated similarly, and persons in different cireumstances should not be treated as if their cireum-stances were the same." Malan v. Lewis, 693 P.2d 661, 669 (Utah 1984); see also Carrier v. Pro-Tech Restoration, 944 P.2d 346, 355-56 (Utah 1997) (observing that Utah's uniform operation of laws provision and federal Equal Protection Clause "embody the same general principles"); Mountain Fuel Supply Co. v. Salt Lake City Corp., 752 P.2d 884, 888 (Utah 1988) (same); Liedtke v. Schettler, 649 P.2d 80, 81 n. 1 (Utah 1982) (stating that article I, section 24 is "generally considered the equivalent of the Equal Protection Clause of the 14th Amendment, U.S. Constitution").

132 Both constitutional provisions incorporate the "[blasic principles of equal protection of the law [that] are inherent in the very concept of justice and are a necessary attribute of a just society." Malan, 693 P.2d at 670. That equal protection is "essential to a free society" is "explicitly stated ... in Article I, § 2 of the Utah Constitution: '[Alll free governments are founded on their authority for [the people's] equal protection and benefit ....' "⁸ Id. (alterations in original) (quoting Utah Const. art. I, § 2).

133 Even though there is a similitude in the "fundamental principles" embodied in the federal Equal Protection Clause and the Utah uniform operation of laws provision, "our construction and application of Article I, § 24 are not controlled by the federal courts' construction and application of the Equal Protection Clause," Malan, 693 P.2d at 670; see also Ryan v. Gold Cross Servs., Inc., 903 P.2d 423, 426 (Utah 1995), and "[w]e have recognized that article I, seetion 24 establishes different requirements from the federal Equal Protection Clause." Whitmer v. City of Lindon, 943 P.2d 226, 230 (Utah 1997). In light of and because of these differences, we also have reiterated that Utah's uniform operation of laws provision is "at least as exacting and, in some cireumstances, more rigorous than the standard applied under the federal constitution." Mountain Fuel Supply Co., 752 P.2d at 889; see also Carrier, 944 P.2d at 356; Whitmer, 943 P.2d at 230. Thus, because "the language and history of the two provisions are entirely different, and even though there are important areas of overlap in the concepts embodied in the two provisions," we have noted that "the differences can produce different legal consequences." Lee v. Gaufin, 867 P.2d 572, 577 (Utah 1993); see also State v. Mohi, 901 P.2d 991, 997 (Utah 1995) (citing Lee); Malan, 693 P.2d at 670 ("The different language of Article I, § 24, the different constitutional contexts of the two provisions, and different jurisprudential considerations may lead to a different result in applying equal protection principles under Article I, § 24 than might be reached under federal law."). Consequently, we will address Gallivan's challenges to the multi-county signature requirement under each constitutional provision separately and in turn.

A. Uniform Operation of Laws under Utah Constitution

134 Gallivan challenges the multi-county signature requirement provision of the initiative enabling statute, Utah Code Ann. § 20A-7-201(2)(a)(i), on the ground that it violates the uniform operation of laws provision of the Utah Constitution, arguing that the multi-county signature requirement is unreasonable and disparate in its operation because it has the effect of heightening the relative weight of the signatures of registered voters in rural, less populous counties and diluting the weight of the signatures of registered voters in urban, more populous counties, thus impermissibly skewing in favor of rural registered voters the power to determine whether an initiative is placed on the ballot under the initiative process. Gallivan contends that the multi-county signature requirement neither is supported by nor furthers any valid or legitimate legislative purpose or objective and that the multi-county signature requirement is not reasonably nee-essary to further legitimate legislative goals. Because in Gallivan's view the challenged statutory provision impacts fundamental or critical rights guaranteed by the Utah Constitution, Gallivan asserts that our review of the statute should employ a heightened seru-tiny, giving little or no deference to the legislature and without affording the county signature requirement provision the normal presumption of constitutionality.

T 35 The lieutenant governor and interve-nors maintain that because no fundamental or critical right is at stake in connection with the statute and because the legislative purposes and goals underlying the statute are reasonable and legitimate and reasonably related to the classification in question, we should sustain the constitutionality of the multi-county signature requirement under the lowest or minimal level of serutiny.

§36 Article I, section 24 of the Utah Constitution states: "All laws of a general nature shall have uniform operation." Utah Const. art. I, § 24. The essence of this constitutional provision is " 'the settled concern of the law that the legislature be restrained from the fundamentally unfair practice' of classifying persons in such a manner that those who are similarly situated with respect to the purpose of the law are treated differently by that law, to the detriment of some of those so classified." Blue Cross & Blue Shield of Utah v. State, 779 P.2d 634, 637 (Utah 1989) (quoting Mountain Fuel Supply Co., 752 P.2d at 888).

187 In order for a law to be constitutional under the uniform operation of laws provision, "it is not enough that it be uniform on its face. What is critical is that the operation of the law be uniform." Lee, 867 P.2d at 577; see also Mohi, 901 P.2d at 997. "A law does not operate uniformly if 'persons similarly situated' are not 'treated similarly' or if 'persons in different cireum-stances' are 'treated as if their circumstances were the same.' " Lee, 867 P.2d at 577 (quoting Malan v. Lewis, 693 P.2d 661, 669 (Utah 1984)). In other words, "[when persons are similarly situated, it is unconstitutional to single out one person or group of persons from among the larger class on the basis of a tenuous justification that has little or no merit." Malan, 693 P.2d at 671 (footnote omitted).

188 Therefore, the equal protection principle inherent in the uniform operation of laws provision protects against discrimination within a class and guards against disparate effects in the application of laws. See id. While the legislature may have discretion in the creation of classes to which legislation applies, " 'the court must determine whether such classifications operate equally on all persons similarly situated." " Id. (quoting State Tax Comm'n v. Dep't of Fin., 576 P.2d 1297, 1298 (Utah 1978)). Ultimately, it is the judiciary's province to decide the vital and determinative question of "whether a classification operates uniformly on all persons similarly situated within constitutional parameters." Id. s

139 In conducting an analysis of a challenged statutory provision under article I, section 24, "the broad outlines of the analytical model used in determining compliance with the uniform operation of laws provision remain the same in all cases, [but] the level of serutiny we give legislative enactments varies." Blue Cross & Blue Shield, 779 P.2d at 637; see also, e.g., Peterson v. Coca-Cola USA, 2002 UT 42, ¶ 23, 48 P.3d 941; Lee, 867 P.2d at 578-83; Ryan v. Gold Cross Servs., Inc., 903 P.2d 423, 426 (Utah 1995); Swayne v. L.D.S. Soc. Servs., 795 P.2d 637, 647 (Utah 1990) (Zimmerman, J., concurring and dissenting); Mountain Fuel Supply Co., 752 P.2d at 888 n. 3; Condemarin v. Univ. Hosp., 775 P.2d 348, 354-56, 373 (Utah 1989); Condemarin, 775 P.2d at 372-13 (Stewart, J., separate opinion).

140 Where a legislative enactment implicates a "fundamental or critical right" or creates classifications which are "considered impermissible or suspect in the abstract," we apply a heightened degree of scrutiny. Ryan, 903 P.2d at 426; see also Peterson, 2002 UT 42 at ¶ 23, 48 P.3d 941; Swayne, 795 P.2d at 647 (Zimmerman, J., concurring and dissenting); Condemarin, 775 P.2d at 373 (Stewart, J., separate opinion).

141 The starting point of our analysis, therefore, is whether the multi-county signature requirement of the initiative enabling statute implicates a "fundamental or critical right" or creates classifications which are "considered impermissible or suspect in the abstract." Ryan, 903 P.2d at 426. The statutory provision at issue in this case impacts the right of the people to exercise their reserved legislative power and their right to vote. As we previously explained, both are fundamental and critical rights to which the Utah Constitution has accorded special sanctity. See supra M 24-27.

142 Because the multi-county signature requirement affects fundamental and critical rights guaranteed by and reserved to the citizens of Utah in the Utah Constitution, we review the challenged law with heightened scrutiny and apply the following analytical model articulated in Lee:

[A] ® statutory classification that discriminates against a person's constitutionally protected [fundamental or critical] right . is constitutional only if it (1) is reasonable, (2) has more than a speculative tendency to further the legislative objective and, in fact, actually and substantially furthers a valid legislative purpose, and (8) is reasonably necessary to further a legitimate legislative goal.

867 P.2d at 582-83. In other words, in order for a discriminatory classification to be constitutional it must be reasonably necessary to further, and in fact must actually and substantially further, a legitimate legislative purpose. See id.

143 Under this uniform operation of laws analytical model, our analysis is straightforward. Initially, we must address two threshold issues by determining (1) what, if any, classification is created and (2) whether that classification is discriminatory, that is, whether it treats the members of the class or subclasses disparately. See Mohi, 901 P.2d at 997. If a discriminatory classification exists, it must then be analyzed according to the Lee test to determine if it is constitutionally permissible. Under the Lee analysis, we review each of the stated legislative purposes supporting the multi-county signature requirement and determine whether that legislative purpose is legitimate, whether the mul-ti-county signature requirement actually and substantially furthers that purpose, and whether the multi-county signature requirement is reasonably necessary to further the legislative purpose. With this road map in hand, we return to the first of our two threshold issues.

144 First, the multi-county signature requirement of the initiative enabling statute requires that citizens wishing to have an initiative placed on the ballot must secure the signatures of registered voters residing in a particular county equal to 10 percent of the aggregate number of votes cast in that particular county for governor in the last gubernatorial election in each of 20 of Utah's 29 counties Utah Code Ann. § 20A-T-201(2)(a)®ii) (Supp.2001). The classification made by the statutory provision, that is, the class of persons to which the statutory provision applies, is registered voters by requiring the signatures of such voters. See id. § 20A-7-201(2)(a). The effect of the operation of the multi-county signature requirement enacted by the legislature is the creation of two subclasses of registered voters: those who reside in rural counties and those who reside in urban counties. These subclasses, while not expressly created by the statute, result from the application and operation of the statute. The lieutenant governor and intervenors also implicitly acknowledge the existence of the two subclasses and the operation of the statute as to the two subclasses when they argue that the legislative purpose behind the multi-county signature requirement is, among other things, to counter localized legislation disfavoring rural counties and populations and to act as a check and balance on the urban majority.

145 Second, the question arises whether the classification created by the legislature is discriminatory, that is, whether the members of the class or subclasses are treated disparately. The multi-county signature requirement has the effect of diluting the power of urban registered voters and heightening the power of rural registered voters in relation to an initiative petition, thereby treating similarly situated registered voters disparately. Given Utah's uniquely concentrated population, the effect of the multi-eounty signature requirement is to allow registered voters in rural counties to wield a disproportionate amount of power in the determination of whether an initiative qualifies to be placed on the ballot. The statutory scheme is discriminatory in that it essentially raises registered voters in rural counties to the level of gatekeepers who can effectively keep initiatives off the ballot despite the existence of significant numeric support for the initiative in urban portions of the state. Because more than three-fourths of Utah's population resides along the urbanized Wasatch Front, ie., in Salt Lake, Utah, Weber, and Davis Counties, a relatively small number of registered voters in the rural, sparsely populated counties have an effective veto in the initiative process merely by virtue of residing in rural areas of the state. For example, a signature in Daggett County, whose population is 0.1 percent of Salt Lake County's population, is rendered 1000 times as valuable as the signature of a voter in Salt Lake County. The multi-county signature requirement does not apply equally to the subclasses of rural and urban registered voters and in effect creates a discriminatory classification because of its disparate impact.

1] 46 Having determined that a discriminatory classification and disparate impact exist, we now must consider if that discriminatory classification is constitutionally permissible under the uniform operation of laws provision. To make this determination, we turn to Lee's analytical model. See 867 P.2d at 582-83.

147 The Heutenant governor and interve-nors advance six purportedly legitimate legislative purposes that allegedly support the discriminatory classification in question and maintain that the multi-county signature requirement is reasonably necessary to further, and in fact actually and substantially furthers, those legislative purposes. The proffered legislative purposes are (1) "maintaining the integrity of the process" by ensuring that there is a "significant modicum of support throughout the state"; (2) ensuring that "initiatives are not so easy to get on the ballot"; (3) "promoting initiatives as grassroots legislation with geographical and popular support"; (4) "counter[ing] the possibility of localized legislation"; (5) "acting as a check and balance" to "temper majoritarian rule [and] safeguard minority interests"; and (6) "insur[ing] that there is an informed electorate." Gallivan responds that none of the suggested legislative purposes underlying the muilti-county signature requirement is legitimate and that the multi-county signature requirement is not reasonably necessary to further those legislative goals in any event.

T48 The primary or principal legislative purpose of the multi-county signature requirement offered by intervenors is that of ensuring statewide support for an initiative before it can be placed on the ballot.⁹ According to this legislative purpose, in enacting the multi-county signature requirement, the legislature sought to ensure that only initiatives that have a sufficient modicum of support from registered voters throughout the state would ultimately be placed on the statewide general election ballot. In other words, the legislature sought to make certain that an initiative has broad geographically distributed statewide support before that initiative can be placed on the ballot. To this end, the legislature chose counties as the unit of geographic distribution.

149 The multi-county signature requirement is not a reasonably necessary means or mechanism to further the legislative purpose of ensuring broad geographic statewide support because it invidiously discriminates against urban registered voters in favor of rural registered voters in violation of the one person, one vote principle and overly burdens the constitutional right of initiative in that it is not the least restrictive means of furthering the stated legislative purpose. The multi-county signature requirement's use of counties as the geographic unit of distribution is the source of the invidious discrimination. Because counties have such widely varied populations, with the concentration of population being in 4 counties, the multi-county signature requirement's reli ance on counties and the effect of its requiring signatures from 20 of 29 counties result in the discrimination in favor of the 25 rural counties over the 4 urban counties. It is not inconceivable that a less restrictive, burdensome, or nondiseriminatory mechanism for ensuring broad geographic statewide support could be crafted. Because the multi-county signature requirement is not a reasonably necessary means to further this intended legislative purpose, it does not pass constitutional muster under our uniform operation of laws provision. See Lee, 867 P.2d at 582-83.

$50 In addition, the multi-county signature requirement does not actually and substantially further the legislative purpose of ensuring statewide support, that is, broadly distributed geographic support, or of promoting initiatives regarding issues of statewide interest. The multi-county signature requirement has the opposite effect. By giving an effective veto to the rural minority over the urban majority, initiatives that enjoy statewide support from the majority of the population and therefore focus on issues of at least numerical statewide concern are prevented from qualifying for the ballot. In this respect, the multi-county signature requirement thwarts the placement on the ballot of widely supported initiatives. Effective ly, only initiatives of rural concern and with rural support get placed on the ballot, thus defeating the use of the initiative process and purpose of statewide support. Therefore, the multi-county signature requirement with regard to purpose does not pass the Lee test because it does not actually and substantially further the stated legislative purpose of ensuring statewide support.

151 The lieutenant governor also argues that the multi-county signature requirement is supported by the legitimate legislative purpose of ensuring that "initiatives are not so easy to get on the ballot." In other words, she argues that the legislature was justified in enacting the multi-county signature requirement because it makes it harder for citizens to exercise their right to legislate through the constitutionally guaranteed initiative process. This clearly is not a legitimate legislative purpose.

152 As we have previously explained, the initiative power and the citizens' right to legislate directly through the exercise of that power is a fundamental right guaranteed in the Utah Constitution. See supro 1 24-27. The legislature's purpose to unduly burden or constrict that fundamental right by making it harder to place initiatives on the ballot is not a legitimate legislative purpose. Endorsing this legislative purpose would essentially allow the legislature without limitation to restrict and cireumsecribe the initiative power reserved to the people, thus rendering itself the only legislative game in town. If such a legislative purpose were legitimate, the legislature would be free to completely emasculate the initiative right and confiscate to itself the bulk of, if not all, legislative power. This would obviously contravene both the letter and the spirit of article VI of the constitution.

158 This is not to say that in some cireumstances the legislature cannot impose restrictions that may, through their operation, make it more difficult to place an initiative on the ballot. The legislature can impose restrictions-such as requiring a particular form of petition, setting reasonable time frames to ensure the efficiency of the process, or requiring signers to be registered voters-which would have the effect of making it more difficult to get initiatives on the ballot, but only to the extent that those restrictions comport with article VI, section 1 of the Utah Constitution, do not violate other constitutional provisions, and further legitimate legislative purposes such as deterring fraud, ensuring the efficiency of the process, or ensuring a modicum of numerical support for an initiative. All of these legislative purposes could support restrictions on the initiative right that could, conceivably, have the effect of making it more difficult to place an initiative on the ballot and could be consistent with the provision of article VI, section 1 that requires the legislature to enact legislation enabling the initiative right. The legislature may not, however, impose discriminatory restrictions on the initiative right by making it "not so easy" to get initiatives on the ballot simply for the sake of making it harder to do so and restricting the initiative power. Thus, the multi-county signature requirement does not pass the uniform operation of laws constitutional hurdle in this respect either because even if we assume that the multi-county signature requirement is reasonably necessary to further, and in fact actually and substantially furthers, the legislative purpose of making it harder to get initiatives on the ballot, that legislative purpose is not legitimate.

154 To the extent this legislative purpose is essentially aimed at preventing ballot overcrowding, the multi-county signature requirement is not reasonably necessary to further that purpose for the same reasons that it is not a reasonably necessary means to ensure statewide geographic support for initiatives. While the multi-county signature requirement might have the effect of making it more difficult to get initiatives on the ballot, thus reducing the chance of ballot overcrowding, it does so only through invidious discrimination and in a way that overly burdens the initiative right. The other procedural provisions of the initiative enabling statute, specifically, the requirement of numeric statewide support, is sufficient to advance this legislative purpose, rendering the multi-county signature requirement superfluous to furthering the legislative purpose.

155 Intervenors also contend that the multi-county signature requirement is constitutional because it is reasonably necessary to further, and in fact actually and substantially furthers, the legitimate legislative purpose of promoting initiatives as grassroots legislation. This purported legislative purpose is offered merely as an assertion without any explanation or analysis in defense of its legitimacy. Even if we were to assume this legislative purpose is legitimate, the multi-county signature requirement is not reasonably necessary to further that purpose. The exercise of the legislative power reserved to the people through the initiative process is inherently a "grassroots" endeay- or. , The very idea and definition of "grassroots" movements or legislation is essentially that the source of the movement or legislation is at the lowest level of the political and governmental power structure. Because the initiative process is inherently "grassroots" in nature, the legislative purpose of promoting initiatives as grassroots legislation would be satisfied by an initiative statute that enabled the basic initiative right with or without the multi-county signature requirement. This being the case, the multi-county signature requirement is not reasonably necessary to further the stated legislative purpose.

T 56 In light of the discriminatory impact and effect of the muilti-county signature requirement and its burden on fundamental rights, the disparate treatment resulting from the multi-county signature requirement cannot be considered reasonably necessary to further this legislative purpose because even in the absence of the multi-county signature requirement the legislative purpose would be furthered. In other words, this legislative purpose could still be furthered without infringing constitutionally protected rights through less restrictive, burdensome, or discriminatory means. Therefore, the multi-county signature requirement is unconstitutional with regard to this legislative purpose because it is not reasonably necessary to its furtherance.

157 Next intervenors argue that the multi-county signature requirement is constitutional because it is reasonably necessary to further, and in fact actually and substantially furthers, the related legitimate legislative purposes of countering the possibility of localized legislation and acting as a check and balance on the majority. Countering the possibility of localized legislation is not a legitimate legislative purpose. The legislature itself does not operate under the requirement that legislation enacted through its processes and procedures must avoid "localized" legislation that potentially favors one region or county of the state.¹⁰ If the avoidance of localized legislation were a legitimate legislative purpose or goal, one would presume that the legislature would tailor its own legislative processes and procedures to ad vance that goal or purpose. This, however, is not the case. The legislature is free to pass localized legislation. If the passage of localized legislation is permissible in the context of the enactment of laws via the constitutionally established legislature, it is hard to discern why the deterrence of potential localized legislation should be advanced as a legitimate legislative purpose in the context of the enactment of laws that unduly burden the people's right to initiative via the constitutionally established initiative power.

1158 Moreover, the multi-county signature requirement does not actually and substantially further the legislative purpose of preventing localized legislation because even under the current multi-county signature requirement, nothing would stop an initiative that, for example, imposed a tax on only 2 counties from receiving the required number of signatures in each of 20 or more of 29 counties. Such an initiative could be considered localized legislation, yet the multi-county signature requirement would be ineffective in preventing it.

159 As to the notion that the multi-county signature requirement is a nee-essary check "to temper majoritarian rule [and] safeguard minority interests" in the context of the initiative process, the multi-county signature requirement is not reasonably necessary to further that legislative purpose.¹¹ The lieutenant governor and interve-nors claim that the multi-county signature requirement acts as a check and balance on the majority. However, the multi-county signature requirement goes too far in this regard. By effectively weighting the signatures of the relatively few registered voters residing in rural counties, the multi-county signature requirement affords the rural minority a preemptive veto or check on the majority's power to legislate through the initiative process.

1160 Our system of government is premised on the notion of majority rule with minority rights. Majority rule is the foundational premise of both of the constitutionally mandated mechanisms for enacting legislation. The representative legislature enacts legislation based upon this principle, and the same should be true with respect to the initiative process. In our system of government, in the event the majority abuses or threatens to abuse the rights of the minority, the minority has recourse to the courts to redress the violation of its rights by the majority. Several constitutional provisions serve to protect the minority from the majority, such as the open courts clause, the uniform operation of laws provision, the prohibition against ex post facto laws and special laws. In this regard, the United States Supreme Court has noted that

to sanction minority control of state legislative bodies [or legislative processes, Le., initiatives], would appear to deny majority rights in a way that far surpasses any possible denial of minority rights that might otherwise be thought to result.... Our constitutional system amply provides for the protection of minorities by means other than giving them majority control of state legislatures [or legislative processes, i.e., initiatives].

Reynolds v. Sims, 377 U.S. 533, 565-66, 84 S.Ct. 1362, 12 L.Ed.2d 506 (1964).

161 Regardless of the constitutional mechanism for redress of abuse of the minority by the majority, the vindication of minority rights in almost every cireumstance comes after an action taken pursuant to majority rule. The legislature, through the multi-county signature requirement, has put the cart before the horse by giving the minority a preemptive weapon against the perceived potential infringement of the minority's rights from the majority's attempted resort to the initiative process. By doing so, the legislature gives the minority control of the initiative power. This preemptive veto on the initiative power turns our system of majority rule on its head and therefore cannot be considered a reasonably necessary means to further the purpose of maintaining checks and balances in our system of government. Furthermore, the multi-county signature requirement does not actually and substantially further the system of checks and balances in our governmental system because it actually causes the system to fall out of balance by shifting an inordinate and disproportionate amount of power to the rural minority at the expense of the urban majority. Therefore, the purpose of maintaining the system of checks and balances is not furthered but instead hindered.

"62 Finally, the lieutenant governor suggests that the multi-county signature requirement is justified "to insure that there is an informed electorate." We do not doubt the necessity of an informed electorate or that ensuring the existence of one is a legitimate legislative purpose; however, the multi-county signature requirement is not reasonably necessary to further, nor does it actually and substantially further, that legislative purpose. The multi-county signature requirement does not promote an informed electorate. At most, the requirement that initiative proponents circulate petitions and gain signatures in 20 (or more) of Utah's 29 counties merely exposes a number of registered voters in those counties to the basic issue underlying the proposed initiative. The circulation of the petition is only the initial stage of the election process, however. In reality, it is after the initiative is placed on the election ballot and the campaigns for and against the initiative are underway that the electorate becomes informed. Therefore, in some respects, the multi-county signature requirement hinders the development of an informed electorate as to the subjects of initiatives because the multi-county signature requirement unduly hinders the ability to get initiatives on the ballot, thus preventing the waging of a full-scale campaign on the issue.

T 63 Nor is the multi-county signature requirement reasonably necessary to further the legislative purpose of enabling an in formed electorate. Because the electorate becomes informed through the campaigns for and against the proposed initiative after an initiative is placed on the ballot regardless of whether the proponents of an initiative cireu-lated the initial petition in and garnered signatures from the required counties, the requirement is not reasonably necessary to further the stated legislative purpose.

$64 The multi-county signature requirement effectively discriminates against urban voters in that it affords the registered voters of rural counties a disproportionate amount of voting power. The multi-county signature requirement's discriminatory classification is unconstitutional under the uniform operation of laws provision of the Utah Constitution because it is not reasonably nee-essary to further, and does not in fact actually and substantially further, any of the proffered legislative purposes. We therefore hold that the requirement constitutes a violation of the Utah Constitution and note that the result in this case is explicitly premised on that holding. Although we address the federal claims raised by the parties, our state constitutional analysis constitutes an independent ground for our decision. Cf. Michigan v. Long, 463 U.S. 1032, 103 S.Ct. 3469, 77 L.Ed.2d 1201 (1983).

B. Federal Equal Protection

165 Gallivan also challenges the multi-county signature requirement provision on the ground that it contravenes the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution, arguing that the requirement imposes severe and discriminatory restrictions on the initiative right because it effectively increases the relative weight of the signatures of registered voters in the rural, sparsely populated counties while concurrently diluting the relative weight of the signatures of voters in the urban, more populous counties, thus discriminating against urban voters by allowing rural voters to act as gatekeepers who can prevent initiatives from qualifying for placement on the ballot. Gallivan asserts that because the multi-county signature requirement severely burdens the rights of urban voters, the requirement "must be analyzed with the strictest serutiny."

T 66 The lieutenant governor and interve-nors contend that the multi-county signature requirement does not severely burden the rights of urban voters and is therefore to be analyzed only under rational basis serutiny. Nevertheless, they contend that the multi-county signature requirement passes constitutional muster under either rational basis or strict scrutiny.

T67 The Equal Protection Clause of the Fourteenth Amendment provides that no state shall "deny to any person within its jurisdiction the equal protection of the laws," U.S. Const. amend. XIV, $ 1, "which is essentially a direction that all persons similarly situated should be treated alike." City of Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432, 439, 105 S.Ct. 3249, 87 L.Ed.2d 313 (1985); see also State v. Lafferty, 2001 UT 19, ¶ 70, 20 P.3d 342.

168 Accordingly, the Equal Protection Clause requires states generally to treat voters similarly and not to unreasonably subject voters to disparate treatment. The United States Supreme Court recently stated:

The right to vote is protected in more than the initial allocation of the franchise. Equal protection applies as well to the manner of its exercise. Having once granted the right to vote on equal terms, the State may not, by later arbitrary and disparate treatment, value one person's vote over that of another.

Bush v. Gore, 531 U.S. 98, 104-05, 121 S.Ct. 525, 148 L.Ed.2d 388 (2000).

T 69 Petitioning to place an initiative on the ballot is an integral part of Utah's initiative procedures and processes and is inextricably intertwined with the voters' right to vote on initiatives, serving a gatekeeping function to that right to vote. See Moore v. Ogilvie, 394 U.S. 814, 818, 89 S.Ct. 1493, 23 L.Ed.2d 1 (1969). Because petitioning to place an initiative on the ballot is "an integral part of the election process," the procedure "must pass muster against the charges of discrimination or of abridgment of the right to vote" under the Equal Protection Clause. Id. According ly, we must determine whether the multi-county signature requirement violates the Equal Protection Clause of the Fourteenth Amendment.

1. Multi-County Signature Requirement under Moore v. Ogilvie

170 For decades the United States Supreme Court has held unconstitutional state election laws when there is a disparity in the political and voting power of the voters similarly situated within a state. In 1962, the Court reversed a federal district court that had determined that it lacked subject matter jurisdiction and remanded, ordering that the district court conduct a trial regarding the asserted constitutional claim that the state apportionment act was "offensive to the Fourteenth Amendment" in that it effected "a gross disproportion of representation to voting population" because the act's "classification disfavors the voters in counties in which [the appellants] reside, placing them in a position of constitutionally unjustifiable inequality vis-a-vis voters in irrationally favored counties." Baker v. Carr, 369 U.S. 186, 207-08, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962).

{71 Then in 1968, the United States Supreme Court declared unconstitutional Georgia's county-unit system under the Equal Protection Clause of the Fourteenth Amendment. Gray v. Sanders, 372 U.S. 368, 379-81, 83 S.Ct. 801, 9 L.Ed.2d 821 (1963). In Gray, Georgia's county-unit system gave "every qualified voter one vote in a statewide election; but in counting those votes [Georgia] employ[ed] the county unit system which in end result weight[ed] the rural vote more heavily than the urban vote and weight[ed] some small rural counties heavier than other larger rural counties." Id. at 379, 83 S.Ct. 801. Declaring this county-unit system unconstitutional, the Court, adopting the one person, one vote principle, explained:

The conception of political equality from the Declaration of Independence, to Lincoln's Gettysburg Address, to the Fifteenth, Seventeenth, and Nineteenth Amendments can mean only one thing-one person, one vote.

Id. at 381, 83 S.Ct. 801 (emphasis added). Striking down the Georgia county-unit system, the Court reasoned:

How then can one person be given twice or ten times the voting power of another person in a statewide election merely because he lives in a rural area or because he lives in the smallest rural county? Once the geographical unit for which a representative is to be chosen is designated, all who participate in the election are to have an equal vote-whatever their race, whatever their sex, whatever their occupation, whatever their income, and wherever their home may be in that geographical unit. This is required by the Equal Protection Clause of the Fourteenth Amendment.

Id. at 379, 83 S.Ct. 801 (emphasis added).

172 The next year, the United States Supreme Court held unconstitutional Alabama's legislative apportionment system, stating:

Since the achieving of fair and effective representation for all citizens is concededly the basic aim of legislative apportionment, we conclude that the Equal Protection Clause guarantees the opportunity for equal participation by all voters in the election of state legislators. Diluting the weight of votes because of place of residence impairs basic constitutional rights under the Fourteenth Amendment just as much as invidious discriminations based upon factors such as race or economic status.

Reynolds v. Sims, 377 U.S. 533, 565-66, 84 S.Ct. 1362, 12 L.Ed.2d 506 (1964) (citing Brown v. Bd. of Educ., 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 (1954); Griffin v. Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891 (1956); Douglas v. California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811 (1963). In Reynolds, the Court reasoned, "Weighting the votes of citizens differently, by any method or means, merely because of where they happen to reside, hardly seems justifiable." 377 U.S. at 563, 84 S.Ct. 1362.

T73 While the foregoing cases address votes rather than a voter's right to petition to place a candidate or direct legislation on the ballot, in 1969 the Court applied the "one person, one vote" principle to the petition context in Moore v. Ogilvie. 394 U.S. at , 89 S.Ct. 1493. At issue in Moore was "Itlhe use of nominating petitions by independents to obtain a place on the Illinois ballot." 394 U.S. at 818, 89 S.Ct. 1493. The Court explained that the "one person, one vote" principle applied to nomination petitions because the use of such petitions

is an integral part of [Iilinois's] election system. All procedures used by a State as an integral part of the election process must pass muster against the charges of discrimination or of abridgement of the right to vote.

Id. (citation omitted).

174 In Moore, the Court held that an Illinois statute requiring 200 signatures from qualified voters in at least 50 of the state's 102 counties was unconstitutional under the Equal Protection Clause according to the one person, one vote principle. Id. at 818-19, 89 S.Ct. 1493. The statute at issue in Moore required at least 25,000 voters statewide to sign a nomination petition and 200 qualified voters to sign nomination petitions in each of at least 50 of the state's 102 counties before a candidate could be placed on the ballot. Id. at 815, 89 S.Ct. 1493. At the time the case was pending before the Court, 98.4 percent of the state's total population was concentrated in the 49 most populous counties and only 6.6 percent of the population resided in the remaining 58 counties. Id. at 816, 89 S.Ct. 1493. The Court held the Illinois requirement of obtaining 200 signatures in 50 counties unconstitutional, stating:

The law ... discriminates against the residents of the populous counties of the State in favor of rural sections. It, therefore, lacks the equality to which the exercise of political rights is entitled under the Fourteenth Amendment.

Id. at 819, 89 S.Ct. 1493. The Court explained:

Under this Tlinois law the electorate in 49 of the counties which contain 98.4% of the registered voters may not form a new political party and place its candidates on the ballot. Yet 25,000 of the remaining 6.6% of registered voters properly distributed among the 53 remaining counties may form a new party to elect candidates to office.

Id.¹²

T 75 Several courts have applied Moore to invalidate election laws that discriminate between voters of populous and sparsely settled counties. See, e.g., Blomquist v. Thomson, 739 F.2d 525, 528 (10th Cir.1984) (holding Wyoming two-county rule unconstitutional under Moore); Communist Party v. State Bd. of Elections, 518 F.2d 517, 521 (7th Cir. 1975) (holding Illinois two-county rule unconstitutional under Moore); Baird v. Davoren, 346 F.Supp. 515, 522 (D.Mass.1972) (holding election law violates equal protection because it "has the effect of discriminating between voters in populous and sparsely-settled counties"); Socialist Workers Party v. Rockefeller, 314 F.Supp. 984, 990 (S.D.N.Y.1970) (invalidating law that granted voters in rural, less populous counties "an absolute equal veto power over the nomination of any candidate"); Socialist Workers Party v. Hare, 304 F.Supp. 534, 536 (E.D.Mich.1969) (holding that election law that is "discriminatory against voters in populous counties" violates equal protection).

1 76 Then, in 2001, the United States District Court for the District of Idaho held unconstitutional an Idaho requirement that initiative sponsors obtain "signatures [from] at least 6 percent of qualified electors from each of" 22 of Idaho's 44 counties before an initiative qualifies to be placed on the Idaho general election ballot. Idaho Coalition United for Bears v. Cenarrusa, Civ. No. 00-0668-S-BLW, slip op. at 9-10 (D.Idaho Nov. 30, 2001). The Idaho District Court concluded that Moore governed that case and stated, "Idaho's law suffers from the same flaw as the Illinois law struck down in Moore." Id. at 10. The court explained:

Because over 60% of Idaho's population resides in just 9 of the State's 44 counties, it is casy to envision a situation where 3/4 of Idaho's voters sign a petition but fail to get it on the ballot because they could not collect 6% of the vote in the rural counties.

Id.

177 Intervenors argue that Moore is distinguishable from this case because Moore "involved requirements for placing third-party candidates on the ballot," while "this case involves rules regarding direct legislation." However, intervenors have not provided us a cogent reason why a different rule should apply to candidates on the one hand and to initiatives on the other. The only difference between the case of a petition to place a candidate on the ballot and the case of a petition to place an initiative on the ballot is that the first involves a person and the see-ond involves an idea that possibly could become law. The voters' suffrage right is fundamental and not to be infringed, regardless of whether the voters are voting for candidates or initiatives. Additionally, in either case, a multi-county requirement like the requirement at issue in this case would mitigate or eliminate the voters' right to vote because neither the candidate nor the initiative would ever be placed on the ballot. Accordingly, in the context of whether there is an equal protection violation regarding ballot access, the distinction between whether ballot access is denied to a candidate rather than to an initiative is a distinction without a relevant difference, and therefore a different rule is not required in this case. See Idaho Coalition United for Bears, Civ. No. 00-0668-S-BLW, slip op. at 10. Therefore, we apply Moore.

T78 The multi-county signature requirement in this case unconstitutionally suffers from the same infirmities as the Illinois law in Moore and the less severe ¹³ multi-county signature requirement of the Idaho statute struck down in Idako Coalition United for Bears. As in both Moore and Idaho Coalition United for Bears, the multi-county signature requirement in this case invidiously discriminates against voters in urban areas. The multi-county signature requirement requires sponsors to obtain

from each of at least 20 counties, legal signatures equal to 10% of the total of all votes cast in that county for all candidates for governor at the last regular general election at which a governor was elected.

Utah Code Aun. § 20A-7-201(2)(a)(ii) (Supp. 2001). Requiring signatures from at least 20 counties is intrinsically discriminatory against voters in urban counties because it impermissibly exalts the power of voters in rural, sparsely populated counties: The mul-ti-county signature requirement effectively increases the relative weight of the signatures of voters in the rural counties and diminishes the relative weight of signatures of urban voters, permitting rural voters to foreclose the placement of an initiative on the ballot, even if the majority of the voters in the state desire the initiative to be on the ballot. In Utah, three-fourths of the state's population resides in only 4 Wasatch Front counties: Weber, Davis, Salt Lake, and Utah. Further, 87.14 percent of the state's overall population is concentrated in the 14 counties in which the sponsors satisfied the individual county signature requirement of the multi-county signature requirement. Comparatively, the aggregate population of the remaining 15 counties is less than 13 percent of the state's total population. To place a proposed initiative on the ballot, sponsors would be required to meet the signature requirement in at least 6 of the 15 counties in which less than 13 percent of the statewide population resides and in 16 of the 24 counties in which only a quarter of the state's population resides. Such a requirement concentrates an inordinate and disproportionate amount of control over qualifying initiatives for placement on the ballot to voters in those less populous counties, effectively affording a few voters a preemptive veto over placement of a proposed initiative on the ballot based solely upon the county in which those voters reside.

179 This problem is exacerbated by the removal provision of Utah Code section 20A-7-205(8)(a), which allows voters to remove their signatures from initiative petitions after the petitions have been submitted to the county clerks for certification and after the sponsors can no longer solicit additional signatures to replace removed signatures. The removal provision effectively allows an initiative petition to be defeated by the removal of a very small number of voters' signatures from initiative petitions in specifically targeted rural counties. Indeed, in this case opponents of the initiative conducted a concerted campaign in rural counties to encourage voters in those counties to remove their signatures from initiative petitions after the petitions had been delivered to the county clerks, and around 8,000 voters in rural counties removed their signatures, effectively preventing the initiative from qualifying for placement on the ballot.

180 As in Moore and Idaho Coalition United for Bears, the disparity in power between the registered voters in rural counties and the registered voters in urban counties under the multi-county signature requirement is constitutionally impermissible, and such invidious discrimination will not be constitutionally tolerated. Thus, the multi-county signature requirement is unconstitutional under the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution.

2. Muilti-County Signature Requirement under Burdick v. Takush

T81 It is argued that the United States Supreme Court case of Burdick v. Takushi, 504 U.S. 428, 112 S.Ct. 2059, 119 L.Ed.2d 245 (1992), supplies the rule as to when strict serutiny applies in election cases.¹⁴ The Supreme Court explained in Burdick:

A court considering a challenge to a state election law must weigh "the character and magnitude of the asserted injury to the rights protected by the First and Fourteenth Amendments that the plaintiff seeks to vindicate" against "the precise interests put forward by the State as justifications for the burden imposed by its rule," taking into consideration "the extent to which those interests make it necessary to burden the plaintiff's rights."

504 U.S. at 434, 112 S.Ct. 2059 (quotations omitted). "Under this standard, the rigorousness of our inquiry into the propriety of a state election law depends upon the extent to which a challenged regulation burdens First and Fourteenth Amendment rights." Id. Accordingly, "when those rights are subjected to 'severe' restrictions, the regulation must be 'narrowly drawn to advance a state interest of compelling importance." " Id. (quoting Norman v. Reed, 502 U.S. 279, 289, 112 S.Ct. 698, 116 L.Ed.2d 711 (1992)). If the challenged election law provision "imposes only 'reasonable, nondiscriminatory restrictions upon the First and Fourteenth Amendment rights of voters, 'the State's important regulatory interests are generally sufficient to justify' the restrictions." Id. (quoting Anderson v. Celebrezze, 460 U.S. 780, 788, 103 S.Ct. 1564, 75 L.Ed.2d 547 (1983)).

11 82 Because Moore v. Ogilvie controls the outcome of this case regardless of the level of scrutiny applied, we apply Moore and its related United States Supreme Court precedent to this case and find it dispositive. See supra part L.B.1. Nevertheless, under Bur-dick strict serutiny applies. In this case, there are severe restrictions on the rights of registered voters in Utah's most populous counties, compelling us to use strict serutiny analysis. The United States Supreme Court explained:

Restrictions on access to the ballot burden two distinct and fundamental rights, "the right of individuals to associate for the advancement of political beliefs, and the right of qualified voters, regardless of their political persuasion, to east their votes effectively." ...

When such vital individual rights are at stake, a State must establish that its classification is necessary to serve a compelling interest.

Illinois State Bd. of Elections v. Socialist Workers Party, 440 U.S. 173, 184, 99 S.Ct. 983, 59 L.Ed.2d 230 (1979) (quoting Williams v. Rhodes, 393 U.S. 23, 30, 89 S.Ct. 5, 21 L.Ed.2d 24 (1968)). The multi-county signature requirement discriminates against urban voters because it allows voters in rural counties to wield disproportionate power over the placement of initiatives on the ballot. See swore ¶¶ 45, 78-79. Thus, the multi-county signature requirement does not impose a "_ 'reasonable, nondiscriminatory restriction[ J' upon the ... rights of voters" in the more populous counties of the state. Burdick, 504 U.S. at 434, 112 S.Ct. 2059 (quoting Anderson, 460 U.S. at 788, 103 S.Ct. 1564).

1 83 Accordingly, under Burdick, the mul-ti-county signature requirement "must be narrowly drawn to advance a state interest of compelling importance." 504 U.S. at 434, 112 S.Ct. 2059; see also Illinois State Bd. of Elections, 440 U.S. at 185, 99 S.Ct. 983 (noting that "where restrictions on access to the ballot are involved," " 'a State may not choose means that unnecessarily restrict constitutionally protected liberty,, [and must] adopt the least drastic means to achieve their ends" (quoting Kusper v. Pontikes, 414 U.S. 51, 58-59, 94 S.Ct. 303, 38 L.Ed.2d 260 (1973))). The justifications advanced in support of the multi-county signature requirement, set forth in paragraph 47 of this opinion, are not "narrowly drawn to advance a state interest of compelling importance." Burdick, 504 U.S. at 434, 112 S.Ct. 2059. First, the proffered justifications fail to meet our own heightened-serutiny analysis under the uniform operation of laws provision of the Utah Constitution, see supra ¶¶ 47-63, which "is at least as exacting" if not more so than the Equal Protection Clause of the Fourteenth Amendment. Mountain Fuel Supply Co. v. Salt Lake City Corp., 752 P.2d 884, 889 (Utah 1988). Second, the proffered justification that the multi-county signature requirement exists to ensure statewide support for initiatives fails under Moore Moore itself rejected this as a justification for a law that discriminates against the political rights of registered voters in violation of the Equal Protection Clause. Moore, 394 U.S. at 818-19, 89 S.Ct. 1493. The Court explained in Moore:

It is no answer to the argument under the Equal Protection Clause that this law was designed to require statewide support for launching a new political party rather than support from a few localities. This law applies a rigid, arbitrary formula to sparsely settled counties and populous counties alike, contrary to the constitutional theme of equality among citizens in the exercise of their political rights. The idea that one group can be granted greater voting strength than another is hostile to the one man, one vote basis of our representative government.

Id. Therefore, although Moore governs this case, the multi-county signature requirement does not pass constitutional muster under the strict serutiny test of Burdick.

II. FREE SPEECH

$84 Gallivan also contends that the multi-county signature requirement is unconstitutional because it violates the free speech guarantees of the First Amendment to the United States Constitution and article I, seetion 15 of the Utah Constitution. Because we decide this case based upon the fundamental rights arguments associated with the uniform operation of laws provision, and the Equal Protection Clause, we do not need to address these additional constitutional challenges. See State v. Telford, 2002 UT 51, ¶ 8, 48 P.3d 228; Salt Lake City Corp. v. Prop. Tax Div. of State Tax Comm'n, 1999 UT 41, ¶ 30, 979 P.2d 346; State v. Lopes, 1999 UT 24, n. 4, 980 P.2d 191; Valley Colour, Inc. v. Beuchert Builders, Inc., 944 P.2d 361, 363 n. 1 (Utah 1997).

III. SEVERABILITY

185 Having concluded that section of the Utah Code is un constitutional, we must determine if that subsection is severable from the rest of the initiative enabling statute.

1 86 The lieutenant governor, intervenors, and legislature argue that the multi-county signature requirement is not severable from the remainder of the statute and that therefore this court's only option in light of its holding that section 20A-7-201(2)(a)(®) is unconstitutional is to invalidate and strike down the entire initiative enabling statute. Galli-van counters that the subsection setting forth the multi-county signature requirement is not an integral part of the statute and that it can be severed from the overall statutory scheme, leaving the rest of the initiative enabling statute operable and effective.

{187 When reviewing the construction of statutes, "[the general rule is 'that statutes, where possible, are to be construed so as to sustain their constitutionality. Accordingly, if a portion of the statute might be saved by severing the part that is unconstitutional, such should be done.' " State v. Lopes, 1999 UT 24, ¶ 18, 980 P.2d 191 (quoting Celebrity Club, Inc. v. Utah Liquor Control Comm'n, 657 P.2d 1293, 1299 (Utah 1982)).

188 In determining if an unconstitutional subsection is severable from its umbrella statute, "we look to legislative intent." Id. at 119. When the legislature's intent is not expressly stated, we "turn to the statute itself, and examine the remaining constitutional portion of the statute in relation to the stricken portion." Id. Upon reviewing the statute as a whole and its operation absent the offending subsection, "[f the remainder of the statute is operable and still furthers the intended legislative purpose, the statute will be allowed to stand." Id.; see also Berry v. Beech Aircraft Corp., 717 P.2d 670, 686 (Utah 1985) (Severability, where part of an act is unconstitutional, is primarily a matter of legislative intent[,] which generally is determined by whether the remaining portions of the act can stand alone and serve a legitimate legislative purpose." (citations omitted, alteration in original)); Stewart v. Pub. Serv. Comm'n, 885 P.2d 759, 779-80 (Utah 1994); Union Trust Co. v. Simmons, 116 Utah 422, 429, 211 P.2d 190, 193 (1949). In Union Trust Co., we further noted that "Tthe test fundamentally is whether the Legislature would have passed the statute without the objectionable[, ie., the unconstitutional] part ...." 116 Utah at 429, 211 P.2d at 193; see also Berry, 717 P.2d at 686.

[ 89 The legislature did not include in the initiative enabling statute an express indication of its legislative intent regarding the severability of potentially unconstitutional portions of the statute. Therefore, we must determine whether the initiative enabling statute is operable without the multi-county signature requirement and whether the initiative enabling statute furthers a legitimate legislative purpose without that provision.

[ 90 The initiative enabling statute is still operable after the offending subsection is removed. Even without the multi-county signature requirement, the initiative enabling statute establishes a workable process and framework through which the citizens of Utah can exercise their constitutionally guaranteed right to directly legislate via the fundamental initiative power. The procedure for placing an initiative on the ballot would function at least as well as the system currently in place. Simply excising the multi-county signature requirement from the initiative enabling statute does nothing to affect the statute's operability.

T 91 The statute still furthers the intended and legitimate purpose of enabling the people's initiative right,. As we have indicated previously, subsection 2 of article VI, section 1 requires the legislature to enact legislation to enable the people to exercise their reserved power and right to directly legislate through initiative. See supra 1128-29. The clear purpose of the initiative enabling statute, therefore, must be to establish a framework through which the citizens of Utah can effectuate their reserved article VI, section 1 power. Indeed, the initiative enabling statute itself invokes the Utah Constitution and states that "Ibly following the procedures and requirements of [the initiative enabling statute], Utah voters may, subject to the restrictions of Article VI, See. 1, Utah Constitution and this chapter{,] ... initiate any desired legislation and cause it to be submitted ... to a vote of the people." Utah Code Ann. § 20A-7-102 (1998). Moreover, this court has stated that the "purpose" of the initiative enabling statute is "that the people be permitted to vote and express their will on proposed legislation." Cope v. Toronto, 8 Utah 2d 255, 259, 332 P.2d 977, 979 (1958) (per curiam).

192 The overriding and controlling purpose of the initiative enabling statute is still furthered without the multi-county signature requirement. Because the purpose of the statute is to enable the citizens of Utah to legislate through the initiative process and the removal of the multi-county signature requirement would not impact the effectuation of the initiative right, the purpose of the statute is still furthered. In fact, the removal of the multi-county signature requirement at a minimum eliminates an overly burdensome discriminatory hurdle to the exercise of the right and in doing so effectively makes it easier for the citizens of Utah to exercise their constitutionally guaranteed legislative power through initiative. In other words, the purpose of the initiative enabling statute is perhaps better furthered through the excise of the multi-county signature requirement.

T 93 Finally, as to the question of whether the legislature would have enacted the initiative enabling statute without the constitutionally infirm multi-county signature requirement, we note that the constitutional mandate in article VI, section 1 dictates that the legislature must enact legislation to enable the exercise of the initiative power. Because the legislature would be required to enact initiative enabling legislation in any event, under the constitutional requirement, the legislature would have to enact the rest of the initiative enabling statute without the unconstitutional provision. In other words, the legislature would have enacted the initiative enabling statute without the multi-county signature requirement because it is compelled to do so by subsection 2 of article VI, section 1 in order to enable the citizens to exercise their reserved initiative power. The legislature cannot claim that they would not have enacted the initiative enabling statute without the multi-county signature requirement because in making such a claim the legislature would be admitting that it would have chosen to shirk its constitutional duty to establish a framework for the exercise of the people's constitutionally guaranteed initiative right. We are certain the legislature, had it known of the unconstitutionality of the multi-county signature requirement, would have met its constitutional responsibility by enacting the initiative enabling statute without the unconstitutional subsection.

T 94 Therefore, the multi-county signature requirement set forth in section 20A-T-201(2)(a)(ii) is severable because the remainder of the initiative enabling statute will continue to be operable and continue to serve a legitimate legislative purpose after the unconstitutional multi-county signature requirement provision is excised.

CONCLUSION

1 95 For the foregoing reasons, the multi-county signature requirement is unconstitutional first, and independent, because it violates the uniform operation of laws provision of the Utah Constitution, and also because it violates the Equal Protection Clause of the United States Constitution. Additionally, the unconstitutional multi-county signature requirement of Utah Code section 20A-7-201(2)(a)(i) is severable from the statewide initiative enabling statute. Accordingly, Gal-livan's petition for an extraordinary writ is granted, and the Heutenant governor is ordered to place the initiative on the 2002 general election ballot.¹⁵

T 96 Justice HOWE concurs in Justice RUSSON's opinion.

Footnotes

1

. Indeed, in her brief, the Heutenant governor did not present any facts, ostensibly concurring with the facts presented by Gallivan, and none of the parties in interest has refuted any facts presented to us that are relevant to the disposition of this case.

2

. Although Utah law requires the sponsors to deliver the packets to the county clerks by June 1, Utah Code Ann. § 20A-7-206(1) (Supp.2001), Gallivan notes that the packets were delivered on June 3 because June 1 was a Saturday. None of the parties contends that this was improper or that it in any way impacts the outcome of this petition for an extraordinary writ or the placement of the initiative on the ballot.

3

. This number represents 1/15,000th of the state's total population.

4

. The dissent contends that "Petitioners have presented this court with a facial challenge to the use of any non-population based geographic distribution requirement in the initiative process [and that therefore] [tlo succeed, Petitioners must demonstrate that no circumstances exist under which such requirement can be found constitutional." This misstates and mischarac-terizes Gallivan's constitutional challenge in this case. Gallivan makes a facial challenge specifically to the multi-county signature requirement, Utah Code Ann. § 20A-7-201(2)(a)(i), in the initiative enabling statute. Gallivan does not challenge the use of "any non-population based geographic distribution requirement" as the dissent suggests, but instead, the actual geographic distribution requirement codified in the statute. Therefore, in order successfully to make a facial challenge to the multi-county signature requirement, Gallivan must demonstrate that no circumstances exist under which this requirement can be found constitutional. United States v. Salerno, 481 U.S. 739, 745, 107 S.Ct. 2095, 95 L.Ed.2d 697 (1987) (stating that in facial challenge, "the challenger must establish that no set of circumstances exist under which the Act would be valid"). Under Salerno, Gallivan is not required to show that any form of a statute requiring a geographic distribution requirement would be unconstitutional, but rather Gallivan must show that the specific requirement at issue, the multi-county signature requirement, is facially unconstitutional. As discussed below, the multi-county signature requirement is unconstitutional on its face because in every instance and under every circumstance it violates the uniform operation of laws provision of the Utah Constitution and the Equal Protection Clause of the United States Constitution.

5

. Originally, intervenors also contended that we do not have original jurisdiction under Utah Code section 20A-7-207(4) to reach Gallivan's constitutional challenges. However, in Gallivan v. Walker, we decided that although we do not have jurisdiction under section 20A-7-207(4), we are treating this action as a petition for an extraordinary writ over which we have original jurisdiction pursuant to article VIII, section 3 of the Utah Constitution. 2002 UT 73 at ¶¶ 2-4, 54 P.3d 1066.

6

. The United States Supreme Court has explained that fundamental rights are those that are "implicit in the concept of ordered liberty." Palko v. State of Connecticut, 302 U.S. 319, 325, 58 S.Ct. 149, 82 L.Ed. 288 (1937), overruled on other grounds by Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969).

7

. Twenty-three states allow their citizens to legislate by initiative. Thirteen of those states, including Utah with the multi-county signature requirement, have some form of geographic distribution requirement. Those states are Alaska, Arkansas, Florida, Idaho, Massachusetts, Mississippi, Missouri, Montana, Nebraska, Ohio, Utah, and Wyoming.

Five of those 13 states-Alaska, Florida, Mississippi, Missouri, and Montana-use a population-based unit of geographic distribution, such as state house districts, state senate districts, or congressional districts. The remaining 8 states, including Utah, use nonpopulation-based units of geographic distribution, such as counties. Each of these states requires a certain percentage of signatures from each of a certain number, percentage, or fraction of the counties in the state to place an initiative on the ballot. See Ark. Const. amend. 7 (requiring 8 percent statewide with not less than 4 percent in at least 15 of 77 counties for enacting statutes by initiative); Idaho Code § 34-1805 (Michie 2000) (requiring 6 percent statewide with not less than 6 percent from each of 22 of 44 counties to place an initiative on the ballot); Mass. Const. Amend. art. XLVIII, Init., pt. 5, § 1 (1997) & Gen. Prov., pt. 2 (1997) (requiring 3.5 percent statewide with not more than one-fourth of the signatures from any one county, or requiring at least 4 of 14 counties to place an initiative on the ballot); Neb. Const. art. 3, § 2 (requiring 7 percent statewide with signatures distributed as to include 5 percent of registered voters from each of 37 of 93 counties to place an initiative on the ballot); Nev. Const. art. 19, § 2 (requiring 10 percent statewide with 10 percent or more from not less than 13 of 17 counties to place an initiative on the ballot); Ohio Const. art. II, §§ 1A & 1G (requiring signatures of 6 percent of registered voters voting in last gubernatorial election and signatures of one-half of those, or 3 percent, from each of 44 of 88 counties to place an initiative on the ballot); Utah Code Ann. § 20A-7-201 (Supp.2001) (requiring 10 percent statewide with not less than 10 percent from each of 20 of 29 counties to place an initiative on the ballot); Wyo. Const. art. 3, § 52(c) (requiring 15 percent statewide with not less than 15 percent from each of 15 of 23 counties to place an initiative on the ballot). It is worth noting that before the legislature amended Utah Code section 20A-7-201(2)(a)(ii) in 1998, Utah required only 10 percent in 15, rather than 20, of Utah's 29 counties. Utah Code Ann. § 20A-7-201(2)(a)(ii) (1995).

Only 3 of the 13 states incorporating a geographic distribution requirement-Alaska, Idaho, and Utah-do so by statute, and of those only Idaho and Utah use counties. Idaho's multi-county signature requirement, requiring signatures from only 6 percent of the registered voters in half of Idaho's 44 counties, was declared unconstitutional by the Federal District Court for the District of Idaho. Idaho Coalition United for Bears v. Cenarrusa, Civ. No. 00-0668-S-BLW, slip op. at 1, 9-10 (D.Idaho Nov. 30, 2001); see infra 176. The other 10 states incorporating a geographic distribution requirement do so expressly in the constitution of the state.

8

. We have referenced either article I, section 24 or article I, section 2, or both, of the Utah Constitution as the wellsprings of our state equal protection principles. See, e.g., Malan, 693 P.2d at 670 n. 13; Allen v. Intermountain Health Care, Inc., 635 P.2d 30, 31 & n. 10 (Utah 1981); Redwood Gym v. Salt Lake County Comm'n, 624 P.2d 1138, 1146 n. 27 (Utah 1981). Article I, section 2 uses the phrase "equal protection," but "although it is relevant to the construction of Article I, § 24, it is more a statement of a purpose of government than a legal standard that can be used to measure the legality of governmental action." Malan, 693 P.2d at 670 n. 13. Nevertheless, article I, section 2 articulates a fundamental philosophical, political, and legal principle that underlies and informs our analysis under its companion uniform operation of laws article.

9

. A few of the other proffered legislative goals or purposes, while offered independently, essentially are components, restatements, or subsets of the broader goal of requiring or ensuring statewide support. To some extent, they are subsumed in the goal of statewide support, and our analysis of the primary purpose applies to those with equal force. In any event, we will address each stated goal independently.

10

. Any "localized" legislation enacted by the legislature would be subject to the prohibition against special laws of article XI, section 3 of the Utah Constitution, as would any "localized" legislation enacted through the initiative process. See Grand County v. Emery County, 2002 UT 57, ¶¶ 7-24, 52 P.3d 1148.

11

. The system of checks and balances that operates in connection with the three coequal and coextensive branches of our state government are constitutionally mandated and derived. Any checks and balances present in the system are therefore constitutional in nature, not "legislative." The legislature is not free to enact restrictions on constitutionally established and guaranteed rights and powers whenever it perceives that the system of checks and balances is misaligned or out of equilibrium. Such a purpose is not a legitimate legislative purpose. Furthermore, it is not a legitimate legislative purpose to impose checks and balances, i.e., overly burdensome restrictions, on the initiative power when the constitutional responsibility and duty of the legislature in enacting initiative enabling legislation is to facilitate the initiative process.

This legislative purpose is also cast as a means of ensuring that rural populations are involved in the initiative process from its inception and as providing a check and balance within the legislative process itself, similar to the processes and procedures employed during the crafting of legislation in the representative legislature, ie., the ability to offer amendments, the use of the com-miltee system, or the ability to table a proposed bill. Again, these internal legislative processes and rules of operation are not constitutional checks and balances. The ability of "[elach house [to] determine the rules of its proceedings" may be constitutionally established, but the actual rules adopted for the operation of the legislature are not. Utah Const. art. VI, § 12. Nothing in the constitution indicates that it is within the legislature's province to impose on the coequal initiative legislative right a system of checks and balances, that is, rules for operation, akin to the legislature's own internal rules of operation. Allowing such would lose sight of the fact that the representative legislative process, while coequal and coextensive with the direct initiative legislative process, has a different character in our constitutional system than the direct legislative process in that the direct initiative legislative process may be considered a constitutional check on the representative legislature if it fails to enact widely supported legislation, see Stavros v. Office of Legislative Research & Gen. Counsel, 2000 UT 63, ¶ 19, 15 P.3d 1013, perhaps because the legislature's internal rules of operation, such as the committee system or tabling, have prevented legislation from being enacted, or where the governor vetoes legislation having popular support but lacking support of two-thirds of the representative legislature to override the governor's veto. Accord Warren v. Boucher, 543 P.2d 731, 740 (Alaska 1975) (Erwin and Burke, JJ., dissenting) ("[Initiative and refer-enda] permit the people to enact laws when the legislature refuses to act, or repeal acts of the legislature which are unpopular or unfair [and are] additional check{s] and balance[s]) on the governmental process because [they] act[] upon the legislative awareness that such power exists with the people."); Mich. United Conservation Clubs v. Sec'y of State, 464 Mich. 359, 630 N.W.2d 297, 306 (2001) (en banc) (noting that initiative and referendum provisions of Michican Constitution provide "means for citizens directly to challenge Legislative action or inaction"); Pitman v. Drabelle, 267 Mo. 78, 183 S.W. 1055, 1057 (1916) (en bance) ("It is the very essence of free government that the laws regulating a community should reflect the view and voice of a majority of its voters [and therefore] the plan (initiative) by which the people are empowered to do the business which their recalcitrant representatives have failed to perform{[] has met with full judicial sanction."). Therefore, the direct legislative initiative process was not meant to be subject to the same checks and balances that the representative legislature has chosen to adopt as its internal rules of operation.

12

. More recently, in Bush, the United States Supreme Court reiterated the rule that states cannot treat voters differently under the Equal Protection Clause simply because they reside in different counties. 531 U.S. at 106-07, 121 S.Ct. 525 (citing Moore, 394 U.S. 814, 89 S.Ct. 1493, 23 L.Ed.2d 1).

13

. The Idaho law requires sponsors of an initiative petition to meet Idaho's multi-county signature requirement in 22 of 44 counties, or in half of Idaho's counties. By way of comparison, the Utah multi-county signature requirement provides that sponsors of an initiative petition must meet Utah's signature requirement in 20 of 29 counties, or more than two-thirds of the counties.

14

. Intervenors contend that Burdick is inapposite because it is a case involving ballot access for candidates rather than ballot access for initiatives. Specifically, intervenors contend, citing the Western District of Arkansas case of Hoyle v. Priest, 59 F.Supp.2d 827 (W.D.Ark.1999), and the Massachusetts Supreme Court case of Massachusetts Public Interest Research Group v. Secretary of Commonwealth, 375 Mass. 85, 375 N.E.2d 1175, 1182 (1978), that voting for a candidate is a fundamental constitutional right, while the right to have an initiative on the ballot is not. However, as stated above, the right of initiative is a fundamental right under the Utah Constitution, and as applied in this case, the multi-county signature requirement serves a gatekeeping function that can, in certain cases, burden the fundamental right to vote by precluding the placement on the ballot of initiatives supported by a majority of the people of the state. In any event, as explained in the previous section, there is no relevant distinction between candidate nominating petitions and initiative petitions. See supra 177.

15

. The statutory deadlines established in the initiative enabling statute have been rendered inoperable in this case by the instant litigation. The operable time frame in this case is November 5, 2002, the date of the general election. Therefore, all that is required in this case is for the lieutenant governor to ensure that the initiative is on the ballot by that date. The deadlines established in the initiative enabling statute otherwise remain effective for future proposed initiatives.