The Utah Republican Party lost a big legal battle Tuesday in its attempt to overturn a 2014 Utah election law that allows candidates to qualify for the ballot through the caucus-convention system and/or by collecting signatures.
A panel of the 10th Circuit Court of Appeals in Denver upheld the law, called SB54, in a 2-1 decision, saying “states must have flexibility to enact reasonable, common-sense regulations designed to provide order and legitimacy to the electoral process.”
Republicans had argued that the law interfered with the party’s constitutional right of association to select nominees as it chooses — and it preferred to use only the traditional caucus-convention system.
But the court said that SB54 “strikes an appropriate balance between protecting the interests of the state in managing elections” and allowing political parties and individuals “to express their preferences and values in a democratic fashion.”
It concludes, “Not only does this balance not offend our Constitution, it is at its very essence. Accordingly, we affirm” earlier decisions that upheld the new law.
The court majority said the case is not “about who the candidates are, but rather who the deciders are. SB54 was not designed to change the substantive candidates who emerged from the parties, but rather only to ensure that all the party members have some voice in deciding who their party’s representative will be in the general election.”
It added the law’s goal is “to ensure that the will of all [the Republican Party] was not being truncated by an overly restrictive and potentially unrepresentative nominating process.”
Utah Republican Party Chairman Rob Anderson said the party is reviewing the decision and will meet in coming days to decide whether to appeal further. “We want to get through our caucus meetings today first,” he said — noting those meetings coincidentally came on the same day as the decision.
Don Guymon, who is among conservatives on the GOP State Central Committee who have fought to repeal SB54, said the party’s Constitutional Defense Committee will conduct a thorough review to decide what to do next.
“We still have several avenues available to the party including a review by the entire 10th Circuit or going to the Supreme Court,” he said
Other options, he said, include pushing the Legislature to repeal SB54 or doing that by passing the Keep My Voice initiative — which is seeking to qualify for the ballot. “We encourage all Republicans who want to preserve their First Amendment rights to sign the Keep My Voice initiative,” Guymon said.
Lt. Gov. Spencer Cox said he recognizes the court’s decision as current law, and as the state’s “chief elections officer, my duty is to execute the law. As a Republican, I am hopeful that this decision will put to rest the lingering issues and unrest happening within our party, allowing us to move forward together.”
Meanwhile Alex Cragun, executive director of the Utah Democratic Party, questioned what Republicans will do now with a bylaw forced through by ultraconservatives to expel candidates in some races who gather signatures. (Anderson said earlier he is ignoring it as illegal).
But Cragun said, “We can’t help but wonder if the [Utah Republican Party] will bother to enforce its own rules, or continue to demonstrate that it is a lawless, rule-less party. Either way, democracy won big today, and this November, Democrats will too.”
SB54 was a compromise negotiated by the Legislature to preserve the caucus-convention system in the face of a 2014 ballot initiative that would have scrapped it for a direct primary. The resulting law allows both the convention and signature-gathering paths to the primary ballot.
As it turns out, that dual path was a key point in the court’s decision to uphold the law.
The Republican Party had argued the signature-gathering requirements were too burdensome, especially in some legislative districts that are packed with members of one major party with few members of the other. That burden effectively interfered with the party’s right of association with potential candidates, according to the GOP.
“If the signature-gathering path stood alone, we would be inclined to agree,” judges wrote.
Of note, the new Count My Vote initiative — which may appear on the ballot this November — seeks to lower the number of signatures required by law. It would also cement into law the dual pathway to the ballot.
Taylor Morgan, executive director of Count My Vote, said, “We’re pleased the court ruled as we expected. It’s clear that Utahns strongly support the dual pathway to the ballot. That’s why we’re working to give Utahns the final say in how to choose candidates who will appear on the ballot.”
He said his group is close to completing gathering the 113,000 signatures needed to put it on the ballot. “We expect to complete our signature gathering later this month.”
The Republican Party arguments against SB54 convinced one of the three 10th Circuit judges in the case.
Chief Judge Timothy Tymkovich, in a scathing dissent, said the law “attempts to change the substance of the Republican Party under the guise of the state’s authority to regulate electoral procedure.”
He compared it to a California case where the state intentionally tried to reshape the party’s message and favor nominees with “moderate positions.”
Utah’s official reasons for imposing the hybrid nominating system “are vague and even impermissible,” Tymkovich wrote.
Describing SB54 as a “collateral attack on party rules,” he warned, “This case should caution us as to the perils of allowing states to impose procedural changes of this magnitude on unwilling political parties … by force of law.”
Tymkovich was appointed by President George W. Bush. Judge David Ebel, who wrote the opinion for the majority, was a President Ronald Reagan nominee. The third judge, Carlos Lucero, was appointed by President Bill Clinton.
Judges used part of the opinion to chide Marcus Mumford, attorney for the Republican Party, for missed deadlines and failure to comply with court orders.
“If it were to continue in future appeals we might be forced to consider taking action against Mr. Mumford,” they wrote. “He would be well-served to approach his next foray into our courthouse with a keen attention to timeliness and detail.”
The Utah Republican Party had once amassed a $410,000 debt in pursuing the case. It said earlier this year that Dave Bateman, CEO of Entrata software, had agreed to handle the debt by negotiating to lower it and cover the remaining costs.
This story will be updated.