This is an archived article that was published on sltrib.com in 2015, and information in the article may be outdated. It is provided only for personal research purposes and may not be reprinted.
Utah Republican Party leaders claimed victory Tuesday, believing the party has gutted an overhaul to state election law and found a way to keep out of the GOP those candidates who try to win office by gathering signatures to get on the ballot.
Meanwhile, a federal judge indicated he will likely strike down a provision of the law that sought to open primaries, letting members of any party or unaffiliated voters cast ballots in any primary election they choose.
"Honestly, that's how I think I'm ruling," U.S. District Judge David Nuffer said Tuesday during a three-hour hearing.
Nuffer reasoned that forcing a party to accept votes from people who are not party members amounts to "forced association" and violates the organization's First Amendment rights. He said to let the open primaries go forward, only to have the provision ruled unconstitutional later, would be like standing by and watching a wreck happen, then saying there should have been a guard.
"I don't want to let an election happen that is invalid," Nuffer said.
The open-primary provision was the last piece remaining in the Republican Party's and Constitution Party's challenge to SB54, a compromise between legislators and Count My Vote, a group of influential Utah politicos who sought to do away with the parties' system of letting a group of delegates select most nominees for office at party conventions.
Count My Vote contended the system put too much power in the hands of the delegates, who are often the most fervent partisans, producing candidates who are outside the Utah mainstream and disenfranchising huge numbers of voters.
The group sought a system of direct primaries, where voters could decide the party nominees, and gathered signatures to put the measure on the 2014 ballot. But while the initiative drive was underway, the group cut a deal with the Legislature, creating a two-track nominating process in which candidates seeking a spot on the primary ballot could either go through the convention or gather a required number of signatures.
But Utah GOP Chairman James Evans believes that compromise embodied in SB54 is moot and all Republican candidates for office in 2016 will have to go through the convention system that predated the bill.
Evans believes it works this way:
• The law gives the party the ability to control who is and is not a party member.
• In August, the party adopted a rule that requires candidates for office to comply with the party constitution and bylaws.
• Because the party bylaws call for candidates to be nominated through the convention system, anyone who takes the petition-gathering route would be disqualified from the party and ineligible to run as Republican.
"As the party, we get to decide our membership and we get to decide how we will proceed in nominating our candidates," said Evans. "We can select either the convention route, the petition route or we can do both. And we have selected the convention route. … Keep in mind, we didn't write the law. We're just following it."
The problem is that the law also says that an individual can seek a party's nomination by gathering signatures.
Mark Thomas, director of the state elections office, said the conflicting provisions will likely spawn the next lawsuit over SB54. Either the party will sue the lieutenant governor's office if it decides to let a signature-gathering candidate on the ballot, or a candidate who circulates petitions will sue after being denied a spot on the ballot.
Rich McKeown, co-chairman of Count My Vote, said there will be Republican candidates including potentially current officeholders who will gather signatures, creating havoc in the party.
"If he intends to literally exclude them from party participation, he is on the threshold of creating a chaotic situation for the party," McKeown said. "What's disappointing is the reaction that suggests the [Republican] Party, any party, would become more exclusive and preclude people from exercising their franchise as opposed to encouraging more people to be involved."
With the next lawsuit apparently waiting in the wings, Nuffer moved to tie up loose ends on the current litigation with his indication that he would likely allow the parties to close their primaries to voters who are not registered party members.
Collin Simonsen, an attorney for the Constitution Party, argued that, with only 4,000 members, opening up voting to the other 610,000 unaffiliated voters in the state would enable outsiders to overwhelm the will of the Constitution Party faithful.
GOP attorney Christ Troupis said that studies of other states showed that crossover in open primaries was as high as 30 percent.
"It is a severe burden to allow unaffiliated voters to participate," Troupis said, "to associate against the party's wishes."
Nuffer agreed, based on rulings in similar cases. "We have never seen a compelling state interest to overcome it."
Nuffer said he would draft a ruling for a later date, but was clear in the direction he was headed.
McKeown said Nuffer's ruling would not have a major impact on the rest of the bill.
"Until now, almost everyone who has looked at this from a constitutional perspective has determined these provisions are constitutional, and apparently Judge Nuffer is going to make a different ruling relevant to a fairly insignificant part of this," McKeown said. "It was not part of the original County My Vote petition and was added as part of the [legislative] agreement."
Striking the open-primary provision would make it impossible for Constitution Party candidates to go through the petition process as well, assuming the party closes its primaries. Because the signatures have to come from people eligible to vote in the primaries, only registered members of the Constitution Party could sign the petitions.
Since there are only 4,000 registered members, a candidate couldn't get the 28,000 signatures, for example, needed to get on the primary ballot for a statewide race.