This is an archived article that was published on sltrib.com in 2016, and information in the article may be outdated. It is provided only for personal research purposes and may not be reprinted.
Utah law makes it too difficult for candidates who gather signatures to get on the primary election ballot and the new law may be unconstitutional, a federal judge said in an order Friday.
The question now appears to be: What's next?
The indication that he is inclined to strike down the signature thresholds creates considerable uncertainty as dozens of candidates have already begun collecting signatures, and 16 have been certified as gathering enough signatures to qualify for the primary ballot
Scores of additional candidates are expected to begin filing for office March 11, when the one-week filing period opens for candidates who plan to seek their party's nomination through the party's convention.
In his order Friday, U.S. District Judge David Nuffer asked attorneys for the Utah Republican Party, which sued the state over the constitutionality of the thresholds, and state elections officials to explain what would happen if he rules the signature requirements are too burdensome.
"The signature path within the [current law] effectively imposes signature percentages on the [Utah Republican Party] that are much higher than have been approved under approved precedent reviewed to date," Nuffer wrote. "There is significant concern regarding the constitutionality of the signature-gathering path of the [law] as applied to the [party]."
The judge has asked the Utah GOP and the state to explain if there is some other threshold in law that could be used and, if there is not, what the ramifications would be on the 2016 election.
"It's pretty clear, I think, on where the judge is right now, at least in regards to the signature threshold," said Mark Thomas, director of the state elections office. "Where we're at is kind of laid out in front of us in the order — the judge wants some additional briefing on what it all means, what are the options, what are the things to consider if he were to rule that section is unconstitutional."
The Utah Legislature approved the signature-gathering path to the ballot as part SB54, a 2014 compromise with Count My Vote, a group of well-connected Utah political leaders, which had sought to do away with the traditional process of letting party delegates choose the nominees for office at party conventions.
Count My Vote argued that the convention process catered to the most strident partisans resulting in the nomination of candidates who did not represent mainstream Utahns and left voters disenfranchised.
The compromise, legislators believed, created a dual-track to the ballot. Candidates could go to the traditional party conventions, they could gather a required number of signatures — 1,000 for state House office, 2,000 for Senate, 7,000 for congressional races and 28,000 for statewide offices — or they could do both.
The Republican Party challenged the constitutionality of the law, arguing that, by dictating how the party should nominate its candidates, the state violated the GOP's First Amendment rights. Nuffer ruled last October that the state couldn't force the Republican Party to allow unaffiliated voters to vote in its election.
Now it seems as if Nuffer is likely to give the party another victory.
"It appears the judge is poised to strike down the thresholds, being that he's asking the state to inform him of what the ramifications would be," said Utah Republican Party Chairman James Evans. "But the point we were making all along is we believe the law, in and of itself, is unconstitutional."
The party also has a case pending before the Utah Supreme Court.
In his October decision, Nuffer ruled that the state could not force the Republican Party to let unaffiliated voters cast ballots in the party's primary or sign signatures for Republican candidates to get on the ballot.
As a result, in some House and Senate districts, the requirements are almost impossibly high. In 54 of the 75 House districts, candidates would have to get signatures from more than 10 percent of the registered Republican voters in the district, with some much higher.
In Rep. Angela Romero's heavily Democratic Salt Lake City district, for example, a Republican candidate would have to get signatures from more than 57 percent of the registered Republicans.
Because of such a high threshold and the fact that candidates can only sign one petition, only one Republican candidate could possibly qualify for the ballot through the signature route.
Attorneys for the state had argued that the signature thresholds are not an undue burden because it was merely an optional — and not a mandatory — path to the ballot. But Nuffer seems unswayed by that argument.
"It seems that if the law provides a path to the ballot, that path should be free of constitutional infirmity," Nuffer said.
Nuffer has given attorneys for the state until March 12 to file their briefs with any argument they could make that the signature thresholds are not unconstitutional and — assuming that they are struck down — whether another threshold might be imposed or what the consequences for the election would be. He has scheduled a hearing on the issue for March 14.
Twitter: @RobertGehrke