Several right-wing politicians and groups are urging the U.S. Supreme Court to accept a last-ditch appeal from the Utah Republican Party seeking to overturn a 2014 state election law that allows candidates to qualify for the ballot through the caucus-convention system and/or by collecting signatures.
In friend-of-the-court briefs, they argue that the law, called SB54, infringes on the party’s constitutional right of association by not allowing it to select nominees as it chooses.
Among others, those filing briefs include the Eagle Forum; 19 current and former members of the Utah Legislature, including some who voted for SB54; Sens. Mike Lee, R-Utah, and Ted Cruz, R-Texas, with Reps. Rob Bishop, R-Utah, and Raul Labrador, R-Idaho; and a group of minor parties.
SB54 was a compromise to stop a ballot initiative that seemed poised to scrap the traditional caucus-convention system and replace it with a direct primary. Count My Vote, which pushed the initiative, said the caucus system tends to give extremists in parties extra power and helps nominate people outside the political mainstream.
Lee, Cruz, Bishop and Labrador argue in their brief that the law “strips core party activists of their ability to select nominees who are loyal to the party platform.”
They add, “When the state manipulates the nomination process to stack the deck in favor of some types of candidates it both undermines parties’ associational rights and denies voters a genuine electoral choice.”
(Lee’s ouster of three-term Sen. Bob Bennett in the 2010 Republican convention was one of the things motivating SB54 supporters.)
The left-leaning Alliance for a Better Utah on Wednesday criticized Lee and Bishop for joining in that brief.
“It is extremely disappointing that Sen. Lee and Rep. Bishop have chosen to side with a small group of extreme party delegates that have been attempting to control the political process in Utah, rather than supporting their constituents’ desires," the alliance said in a prepared statement. “It is especially ironic that Lee, an aggressive advocate of the 10th Amendment, is now asking the Supreme Court to dictate how a state can run its elections.”
Nineteen current and former state legislators, all members of the right wing of the GOP, including some who voted for SB54 but say they have changed their mind about it, made similar arguments.
They prefer relying only on the caucus-convention system to pick party nominees, saying that it “works against nomination seekers who lack substance, who seek to avoid their voting records, or who don’t agree with and won’t work to advance the party’s principles. SB54, on the other hand, demands a different type of electioneering — one that requires more money.”
The right-wing Eagle Forum Education & Legal Defense Fund argues that SB54 “cannot be justified based on its underlying goal of reducing extremism in political nominees."
It said, “In their own day, abolitionists and even the signers of the Declaration of Independence were considered to be extremists. … Some considered to be extremist today may be viewed as a moderate in the future, and vice versa.”
A group of political parties — including the Green and Constitutional National parties and several state Libertarian parties — argued that if lower court rulings stand, “political parties will no longer have a fundamental right to choose their own candidate selection process.”
The Denver-based 10th U.S. Circuit Court of Appeals upheld SB54 earlier this year in a 2-1 decision by saying “states must have flexibility to enact reasonable, common-sense regulations designed to provide order and legitimacy to the electoral process.”
The appeals court denied a subsequent request to have the case reconsidered by the full court instead of just the panel of three judges.
SB54 has split the Utah Republican Party. Business groups and moderates applaud the new law, and many of them quit donating to the party when they feared their money would go to the lawsuit.
Right-wing leaders, who dominate the party’s Central Committee, like the convention system that helped give them power, and they have pushed the legal challenges.
When party Chairman Rob Anderson tried to stop the lawsuits by saying the costs were bankrupting the GOP, the Central Committee stripped him of such powers and created a Constitutional Defense Committee to make decisions on the appeal.
The party had at one time amassed a $410,000 debt in pursuing the case. But earlier this year, Dave Bateman, CEO of Entrata software, stepped in and “acquired the debt” from party lawyers — who settled for about 40 cents on the dollar — with some strings attached.
Bateman said he paid the lawyers $175,000 to settle their bills and agreed to cover future costs of continuing legal battles against SB54. The catch is that the party would need to repay him if it ever dropped the lawsuit without his permission or before all appeals were exhausted — including the final appeal to the U.S. Supreme Court.
Count My Vote attempted another ballot initiative this year to help cement SB54 into law. It appeared to have enough signatures to qualify for the ballot, but an effort funded by Bateman thwarted that by persuading enough people to withdraw their signatures.
Correction: The Eagle Forum and Eagle Forum Education & Legal Defense Fund filed a brief in this case, not the Eagle Forum.