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Op-ed: Count My Vote/SB 54 is a step away from liberty

By Chris Herrod

First Published Mar 10 2014 04:59 pm • Last Updated Mar 10 2014 04:59 pm

While I could easily argue the merits of the caucus system, what’s most disheartening about Count My Vote and SB54 is that they ignore basic constitutional principles.

Regardless of how one feels about political parties (specifically the Republican Party), we should all be concerned with the interference of a private organization’s right to set its own rules, whether one agrees with them or not.

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Take a step back from the emotion of Count My Vote and think of the absurdity of what is being done. Would we really expect the ACLU to compromise with the Eagle Forum on its decision to pick its leader or vice versa?

Although I don’t often agree with the ACLU, I would stand by them if their right to freely associate were threatened. Would we expect any other private organization, or even a church for that matter, to do the same as we are asking the Republican Party to do?

The First Amendment primarily deals with two individual rights — political and religious rights. These rights are protected by freedom of speech and the freedom of association. Unfortunately, protecting these two rights seems to be the civil rights battle of the decade.

Freedom of speech takes many forms. How one spends one’s time and the organizations one supports is a form of political speech and deserves protection.

If government and non-elected PACs are allowed to tell parties how to choose leaders, then it can certainly tell other private or religious organizations.

Count My Vote directly tells parties how to choose a candidate. SB54 attempts to get around the Constitution by claiming parties can "voluntarily" become a qualified party. Idaho constitutional scholar Christ Troupis explains, "That is called a classic ‘unconstitutional choice.’ Any agreement to such a conditioned benefit is void ab initio."

In Perry v. Sinderman, the courts ruled that government "may not deny a benefit to a person on a basis that it infringes his constitutional protected interest — especially his interest in freedom of speech."

So before we celebrate too much the "Great Compromise" I hope we contemplate the message that is being sent. I find nothing noble with the Legislature and CMV negotiating away the rights of a third party. Of course, true compromise is important for many budgetary and policy decisions, but compromise should respect unalienable rights because each time rights are taken, it becomes easier to justify and its frequency will only increase.


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Sadly, we could have saved much effort and money if we would have simply learned from our own history. In 1994, HB 359 passed which codified that the state could not dictate how to run primaries. Listen to the Senate floor debate and the conversations sounds familiar — threats of initiatives, complaints of low voter-turnout and the bemoaning declaration of party affiliation — surprisingly current rhetoric but at least in the end there was a recognition of constitutional rights of political parties.

The irony is that Lane Beattie was the Senate sponsor and Gov. Mike Leavitt signed the bill. Both are advocates for CMV. Unfortunately, they have forgotten the constitutional rights of parties.

I also cannot understand the logic of "we must save the caucus by destroying the caucus" as some legislative leaders have suggested. Neither can you protect the First Amendment by expanding government interference.

The Tribune chided me for any comparison to what’s happened in Ukraine, but Ukraine teaches us that the freedoms of association and of speech are the ultimate bulwarks against government intrusion and should not be compromised.

Of course, our rights are not threatened from swift incursions as in Ukraine but rather from within. Our rights are usurped by gradual erosions but result in liberties lost nonetheless and many Eastern European immigrants watch in dismay as we voluntarily give our rights away that so many must struggle to keep.

Gov. Herbert should have remembered this and vetoed SB54.

Chris Herrod is a former state representative from Provo.



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