With no important public lands bills to kill and the Senate incapable of passing a budget, it looks like Mike Lee had some free time on his hands. So he decided to go after Gov. Gary Herbert.
Weird flex, as the kids say, but OK.
Specifically, in a long string of Facebook posts this week, Lee challenged Herbert and Lt. Gov. Spencer Cox to drop Utah’s defense of Senate Bill 54, the law that created a signature-gathering path to the primary ballot in addition to the traditional practice of party delegates choosing nominees.
Maybe it was just sour grapes from Lee, who got chastised by Herbert and others for killing a package of public lands bills that had broad support from elected officials in D.C. and across rural Utah. But it could also be the first volley in a coming barrage to overturn the signature path to the primaries.
SB54 is reviled by fringe elements in the Republican Party who had a pretty nice thing going, since they traditionally had the power to pick nominees and, in an overwhelmingly Republican state like Utah, install similarly minded ideologues across the state without having to worry about close general election fights.
After losing at every court they tried, these partisan zealots are now asking the U.S. Supreme Court to strike down the law, taking the power from the 600,000-plus registered Republicans and handing it back to the right-wing activists.
It’s extremely unlikely the Supreme Court will hear the case. The justices elect to hear fewer than 3 percent of the cases submitted. And on top of that, the 10th Circuit ruling upholding the constitutionality of SB54 relied on well-established Supreme Court precedent.
The U.S. Constitution gives states the explicit authority to make laws regarding how elections are conducted. And, while parties have a First Amendment right to assemble, make their rules and elect officers, when it comes to external functions — like putting candidates on the ballot — the state has a “manifest interest” in making rules.
Lee and his pal, Texas Sen. Ted Cruz, filed a brief in November arguing the court should hear the case and, well, it’s kind of a mess. They contend the Republican Party is made up of the core activists, not the hundreds of thousands of registered GOP voters.
They argue SB54 stacks the deck to elect moderate candidates, ignoring that it’s actually conventions that stack the deck for fringe candidates and that we have real-world examples of that happening.
The most obvious was Rep. John Curtis’ 2017 race, where he finished fifth and was eliminated at the Republican convention, but, because he gathered signatures, ended up on the ballot and trounced convention-winner Chris Herrod in a primary.
We can also look at Herbert’s re-election in 2016, where he finished behind challenger Jonathan Johnson at convention, then crushed him in a primary by 45 points. More recently, Mitt Romney finished behind former Rep. Mike Kennedy at convention, then beat him by 43 points in the primary.
Clearly, the convention delegates are out of touch with mainstream Republican voters.
Lee’s brief contends that’s a good thing, that it’s the delegates who represent the “core” Republican beliefs and are best equipped to shape the GOP “brand.” To make his case, he distorts a study by two Brigham Young University political scientists.
The study (which dealt with presidential caucuses, not state conventions) didn’t address what a party’s core beliefs are, Chris Karpowitz, the lead researcher, told me. But it did find caucuses attract participants and produce winners who are more ideologically extreme.
“Our analysis thus raises the concern that caucuses do not meet even the minimal standard of fairness in representation,” wrote Karpowitz and his colleague, Jeremy Pope. “They systematically deter the moderate, less consistent voters, and people appear to have misgivings about the procedure.”
The central question, in their research and the lawsuit, Karpowitz said, is whether the party is made up of the voters or the activists, because that influences which nominating system one chooses and the candidates it produces.
Which brings us back to Lee calling out Herbert and Cox. The unusually brazen challenge has some Republicans wondering if he was laying the groundwork to run for governor in 2020. I think that is unlikely, mostly because his approval rating statewide is barely better than President Donald Trump’s, according to the most recent poll by The Salt Lake Tribune and Hinckley Institute of Politics. (Trump’s approval was 51 percent; Lee’s was 56 percent.)
There is, however, a revolt brewing against Lee as Republican business leaders, frustrated with his hard-line views, have begun looking for someone to run against the senator — just as they did unsuccessfully in 2016.
Whether he runs for Senate, governor or dogcatcher, Lee would fare much better with the activists at convention than mainstream Republicans in a primary.
And, while the Supreme Court almost certainly will not hear the Utah case, for now Lee and his followers can use the possibility of the appeal as leverage to pressure the Legislature to eliminate SB54.
This week, state Sen. Dan McCay, who co-sponsored SB54, said he plans to sponsor a bill repealing the measure. The House has previously passed a soft repeal bill that died in the Senate.
If the momentum builds, the only obstacle would be Herbert. He’s no fan of SB54, but also isn’t likely to be inclined to do the delegates any favors. Plus, repealing SB54 would likely hurt Cox, his chosen successor.
So that’s where Lee is applying his pressure and we’re likely to see a full-scale assault on the bill in the coming months before the court declines the case and the SB54 cement is fully dried.