The Independent View: State Parties Still Talking About Closing Their Primary

Thanks to Ballot Access News for these updates.

Utah Republican Party May Sue to Regain Closed Primary

Leaders of the Utah Republican Party may bring a lawsuit to regain their closed primary. SB 54, signed into law March 10, says that if a party doesn’t agree to let independents vote in its primary, it can’t have its name next to its nominees on the November ballot. Utah Republican Party leaders tell UtahPolicy that they are considering suing the state over SB54, the Count My Vote citizen initiative petition compromise that provides a dual-track process to candidate nominations.

The Republican state party chair James Evans finds it is the requirement in SB54 that political parties have an open primary, that's illegal. The state GOP has a closed primary today.

A compromise law, sponsored by Sen. Curt Bramble, R-Provo, would forced all political parties to have open primaries. But Bramble and attorneys for the Legislature came up with a alternative in SB54 that has not been widely discussed in all of the media hype about the compromise. The state GOP can CHOSE to keep their single-track, caucus/delegate/convention system exactly as it is today.

But if GOP leaders do chose to opt out of the dual-track, open primary system, then their candidates, on the November general election ballot, CANNOT come under a banner that says Utah Republican Party. This, of course, is a pretty big hammer. Utah is overwhelmingly Republican.

So, if you have a Democratic Utah House or Senate candidate on the November ballot, and then some other guys in the race, maybe a small “I” independent or a 3rd party, like Constitutional, and then a guy with no party affiliation next to his name, how do you know who the Republican is in the race?

If many Utahns are used to just voting for the GOP candidate in the final election, and there is no GOP candidate listed, that could be real trouble for the Republican Party.

Dual track allows a candidate to go through the normal caucus/delegate/convention party system. Or a candidate can decide (by Jan. 1, of the election year) to gather a set number of voter signatures in his district (or statewide for offices like U.S. Senate and governor) and go directly to the party primary ballot. And part of that process is a required open primary.

SB54 says that by Sept. 30 in the year preceding the next general election – in other words, Sept. 30, 2015 for the 2016 election cycle – each party in Utah that wants to be a “qualified” party must in writing agree to the dual-track process and an open primary. You don’t have to be a “qualified” party. But if you are not, then on the following general election ballot no candidate will be listed under your party name.

State lawyers believe that the “opt-in,” “opt-out” provisions in SB54 will legally satisfy the open primary part of the bill.

Finally, there are a few quirks in SB54 of note:

-- Under current law, after voter signatures are handed in to county clerks for a citizen initiative petition, opponents of that petition can try to get people who signed it to take their names off.

But signees of the candidate petition process can’t take their names off once they’ve signed – so no shenanigans with a candidate’s opponents trying to decertify his race by getting signees to take their names off.

-- If you don’t follow the dual-track process, your party convention may “endorse” candidates, but those endorsements can’t be on the general election ballot.

-- If you take the candidate petition route to the party primary, you can’t pay petition-gathers. They have to be volunteers. That will make it a lot more difficult for a statewide candidate, for example, to gather the 28,000 required signatures to make his party’s primary ballot.

-- The dual-track process applies to county elected positions. The petition only applied to federal and state candidates.

-- Political parties who take the dual-track process must also allow for absentee delegate voting in the March neighborhood caucuses and provide a way for a delegate who will miss the convention to be replaced with a delegate who can attend.

Hawaii Democratic Party Files Opening Brief in Ninth Circuit, in its Lawsuit to Close its Primary

On December 12, the Hawaii Democratic Party filed a notice of appeal in Democratic Party of Hawaii v Nago, the case over whether the party can close its primary so that only party members can vote in its primary. The U.S. District Court had upheld the open primary on the grounds that the party had not proved that the open primary results in non-members voting in its primary, or that if non-members do vote in its primary, that the party hasn’t showed this harms the party.

On March 24, the Hawaii Democratic Party filed its opening brief in the Ninth Circuit in Democratic Party of Hawaii v Nago, 13-17545.

The party vigorously contests the finding of the U.S. District Court, which was that an open primary law is not subject to a facial attack, because theoretically, there might be some political party in Hawaii that wants to keep an open primary for itself.

The Democratic Party’s brief lists many cases in which the U.S. Supreme Court entertained a facial challenge in a First Amendment case, even though there were individuals or groups in the same category as the plaintiffs who liked the status quo.