The Independent View: New Utah Election Law Hangs on Judge Decision

A Federal judge appears poised to strike down part of a disputed new state election law that defines how political parties choose candidates for elected office.

U.S. District Judge David Nuffer signaled Tuesday that he intends to find forcing parties to hold open primary elections is unconstitutional. He noted that every other court has found that requirement violates the First Amendment. "Honestly, that's how I think I'm ruling," he said after hearing arguments from the Utah Republican Party, the Utah Constitution Party and the State.

Nuffer will issue a written decision in the coming days, which could potentially end the lawsuit that the Utah GOP filed against the State. The law includes a clause that says if part of it is struck down, the remainder stands.

Under the law, organizations that register with the State as a "qualified political party", which the GOP did, must allow candidates a route to the primary ballot that bypasses the traditional caucus and convention system, specifically gathering a requisite number of signatures for a particular office. Parties must also open their primaries to unaffiliated voters.

The law gives qualified political parties the option to choose the convention system, signature gathering or both, and the Utah GOP chose only the convention system.

But the Judge thinks the candidate, not the party, decides which path to take to get on the primary ballot. "The law is clearly drafted so that a candidate who's running under a qualified political party can choose one or the other or both," he said. "There's not a single provision in that law that says the party can choose one or the other or both. That's a choice for the candidate."

As for the judge striking down the open primary provision, some think that would be like pulling a string on a sweater "because the question is where do you stop?" If unaffiliated voters, which make up about 40 percent of Utahans, can't vote in a primary, it doesn't make sense to be able to sign a candidate's petition to get on the ballot, he said.

Rich McKeown, co-chairman of the Count My Vote initiative, said removing the open primary provision would limit Utahans' ability to participate. "I think there's wisdom in opening these up. I think it's a good component of the legislation. I wish the judge determined that it was constitutional. I think it's very specific and allows more people to vote," he said.

The Utah GOP argued in court documents that allowing unaffiliated voters to cast ballots in its primary election would result in nonparty members electing its nominees for the General Election. The party also says it would change its message and dilute its ideology.

The state contends the Republican Party hasn't shown if and how many independent voters would participate in the GOP primary and has no concrete evidence of how it would impact the outcome or the party's message.

Count My Vote two years ago set out to increase voter participation by changing how political parties choose candidates. Initiative supporters dropped the statewide petition drive calling for a referendum on a direct primary election in exchange for getting an alternative path to the ballot.

As a compromise, the Republican-controlled Utah Legislature passed SB54 to let parties keep the state's unique caucus and convention system for choosing nominees, but also allow candidates to collect signatures to get on the primary ballot.

The Utah GOP says it was not involved in the deal and asked the court last December to strike down the law.

From Richard Winger of Ballot Access news:

It is not clear which provision is in greater jeopardy. The two challenged procedures are: (1) forcing parties to let candidates on their primary ballot who have little support at a party caucus; (2) forcing parties to let independent voters vote in their primaries. The law says parties that don’t allow these things can still run nominees, but the nominees must petition to be on the November ballot in the same manner as independent candidates. Utah only requires 1,000 signatures for statewide independent candidates and smaller numbers of signatures for other office.