This is an archived article that was published on sltrib.com in 2016, and information in the article may be outdated.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 lawmakers may be willing to let a federal judge decide whether candidates for office who gather signatures will be allowed on the 2016 primary election ballot.
On Friday, U.S. District Judge David Nuffer signaled that he had serious concerns that the signature requirements set an impossible bar for some candidates to clear and appeared poised to strike them down.
Legislative leaders met Saturday afternoon to discuss how — or if — the Legislature would respond in the waning days of the session and, at this point, appear content to leave the issue to the judge.
If lawmakers want to step in, Rep. Kraig Powell, R-Heber City, has introduced a bill that would require candidates to get signatures from 2 percent of the eligible voters in the jurisdiction to go to the primary ballot. The current standard is 1,000 signatures for a House seat and 2,000 for a Senate seat.
"I think Powell's bill will be part of the conversation. I just don't know if that's where the body wants to go," said Rep. Dan McCay, R-Riverton, who was the House sponsor of SB54 in 2014, which created the signature-gathering path to the ballot.
Complicating matters is that there is a significant number in the House who may want to see the signature track eliminated entirely. Thirty House members voted earlier this session for an amendment to a bill sponsored by Rep. Fred Cox, R-West Valley City, that would have effectively done that. And to take immediate effect, any revisions to the signature thresholds would need a two-thirds majority, or 50 House votes.
"We've talked about different possibilities [for fixes] in legislation and we've talked about the possibilities of legislation passing, both of which we're pretty unsure about," said Senate President Wayne Niederhauser, R-Sandy. "We're concerned about even having the votes to bring up something on SB54."
Utah Republican Party Chairman James Evans said he would like to see the Legislature stay out of the fray and let the judge rule on the signature thresholds and, more generally, whether the state can dictate how the party chooses its representatives.
"We believe it's unconstitutional for the state to mandate [to the party], so let's let the judge rule on the constitutionality and move beyond that," Evans said. For the Legislature to try to address the judge's concerns "will be once again telling us how to choose our nominees. We believe the courts are going to rule in our favor and say you just can't do that."
Sen. Curt Bramble, R-Provo, the Senate sponsor of SB54, said that, if the House does pass Powell's bill, he believes the Senate will follow suit "to provide certainty during the 2016 election."
"I understand the party wanting the judge to decide. The challenge is this is the people's ballot, it's the people's election," Bramble said. "Having certainty in the election when you're in the middle of the election process is important."
The uncertainty was kicked off Friday, when Nuffer signaled serious constitutional concerns about the signature thresholds in place this year for candidates who want a spot on the primary ballot. Traditionally, candidates have had to secure the party's nomination from delegates at the party convention.
Nuffer cited a U.S. Supreme Court ruling that had upheld a requirement to collect signatures from 5 percent of voters, but in some districts in Utah the thresholds are much higher — a fact that was compounded by Nuffer's November ruling that allows the Republican Party to exclude signatures from unaffiliated voters.
As a result, in some Republican districts candidates need to gather signatures from a third of the eligible GOP voters to get to the primary and in heavily Democratic districts the number is as high as 57 percent.
In signaling his concerns, Nuffer gave lawyers for the Republican Party and the state until Thursday — the last day of the legislative session — to provide any alternative threshold in law that he might legally apply, or updates on any bills that the Legislature passes to clarify the thresholds.
Absent any other applicable threshold, Nuffer asked the state what the ramifications of striking down the signature-gathering path would be on the 2016 elections. Dozens of candidates are already gathering signatures and 16 — including Bramble — have submitted enough to be on the primary ballot.
If Nuffer indeed finds the signature requirements to be unconstitutional, McCay told House colleagues that there are essentially four paths the judge might take. He could:
• Invalidate SB54 entirely, which McCay said is unlikely.
• Get rid of both tracks of the two-track system. If that happens, the default becomes a signature-gathering process where candidates have to collect signatures from 2 percent of the eligible voters and candidates are not allowed to go through the convention avenue to get on the ballot. That is also problematic, because the ruling would come in the middle of the period in which candidates are filing to seek the nomination through the convention.
• Toss out only the signature path and leave the convention avenue intact. "That's clearly not the legislative intent. It's hard to make the argument," McCay said. "I don't think that's likely."
• Strike down the high signature thresholds and "fill in the blank," as McCay puts it, with a constitutional threshold or, conceivably, without a threshold in place, allowing anyone who has filed to gather signatures to go directly to primary ballot.
Twitter: RobertGehrke