Utah Judge Rules State Can't Force Political Parties to Hold Open Primaries

U.S. District Judge David Nuffer found that Open Primaries would be a "severe burden" on parties because it forces them to "flood" their elections with thousands of unaffiliated voters. In Utah, that would mean letting about 610,000 people who don't claim a political affiliation to vote in party primary elections.

The case had been filed by the Republican Party and the Constitution Party, and is Utah Republican Party v Herbert, 2:14cv-876.

Utah law said parties could exclude independents from their primaries if they wished, but the nominees of such parties could not then have the party label on the November ballot. The decision barely discusses this provision, and simply takes it for granted that no party would be willing to pay that price.

Nuffer's ruling, however, leaves the remainder of the law intact, including allowing candidates to gather signatures without going through a party caucus and convention to get on the primary ballot.

The Utah GOP allows only registered Republicans to vote in its primary elections.

State Elections Director Mark Thomas said the ruling wasn't a surprise, noting Nuffer indicated early on that he found the open primary requirement troubling. "But it's a small part of SB54. In fact, it's one line in SB54," he said. "The bigger part of this is the judge ruled that the rest of it, specifically the signature gathering portion, is constitutional."

That means candidates next year will have the choice to go through the convention system, take the signature route or both, Thomas said.

The state told the judge in a court filing last week that it doesn't intend to file a response to his decision but reserves the right to appeal. The Utah Attorney General's Office did not have an immediate comment Tuesday on the ruling.

An initiative called 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 a requisite number of signatures for a particular office to qualify for the primary election.

The Utah Republican Party and the Utah Constitution Party sued the state, arguing the law violates their right to free association, determine their brand and message, and select nominees to run for public office.

Under the law, organizations that register with the state as a "qualified political party", which the GOP and the Constitution Party did, must allow candidates an alternate route to the ballot and open their primaries to unaffiliated voters, though that requirement is now gone.

Rich McKeown, Count My Vote co-chairman, said having open primaries was not critical, and the law will still change the way elections are done if parties comply with it.

Nuffer also found allowing candidates to gather signatures without going through a party caucus and convention to get on the primary ballot is constitutional.

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, he said.

Evans said the party's membership requirements don't allow candidates to take the petition route and those who "won't be members of the Utah Republican Party."

But Thomas said regardless of how Evans interprets the law, it clearly allows candidates, not political parties, to choose their path to the ballot.

Evans said determining party membership would be the next court battle between the GOP and the state.

Utah Democratic Party Chairman Peter Corroon affirmed the party's support for laws that open the political process to more voters, including candidates' ability to get on the ballot through the signature process. "While Republicans continue to shut out independents and unaffiliated voters, we welcome them with open arms to the Utah Democratic Party," he said in statement.

For me, in all the cases about the "Right of Association" issue could be solved by having two ballots. The Open Primary ballot and a separate ballot for Party elections that only Party members receive.











NYC Wins When Everyone Can Vote! Michael H. Drucker

Utah Count My Vote and GOP Lawsuit to Restore Old Type of Primary

The Utah 2014 legislative session was coming to its end, negotiations were frantically taking place between lawmakers and the backers of Count My Vote.  A tenuous compromise was made between the two camps as SB 54 – Elections Amendments would pass the House and Senate by healthy margins.

At the time, Count My Vote was petitioning to change state law and allow candidates to go around Utah’s unique system of delegate-appointed candidates appearing on the ballot.  Count My Vote advocated for an open primary option that would allow the citizens, rather than political party members, to choose who would appear on the ballot.

The issue was a divisive one among both Republican and Democratic party officials alike.  The compromise, SB 54, would maintain the traditional nomination process until the 2016 election cycle.  After that, SB 54 would allow for candidates to appear on the ballot after either going through the traditional delegate process or by collecting enough signatures to force a primary election.

It did not take long for speculation to loom over the long term fate of SB 54.  Political insiders wondered if the 2015 legislative session would result in an overturning of SB 54 by lawmakers after the well funded and politically powerful Count My Vote petitioners claimed victory by collecting over 100,000 signatures in support of their cause.

Over the holiday weekend, the other shoe appeared to have dropped, when it was announced that the Utah GOP would file suit against the state, the result of which will show whether or not the state has the right to determine how candidates are chosen by political parties.

“We want the court to determine the relationship between the state and political parties,” Utah GOP Chairman James Evans said.  “Our point of view is the state doesn’t have the constitutional right to reach in and tell us how to select our nominees.”

Supporters of Count My Vote began to cry foul long before the official announcement came.

“Polls demonstrated overwhelming public support for Count My Vote.  However, a number of partisans, including some legislators, were strongly opposed to entirely losing the caucus/convention process,” Hinckley Institute of Politics Director and co-founder of Count My Vote, Kirk Jowers, said in an opinion piece in The Salt Lake Tribune.  “There are discussions in back rooms and on social media that some political operatives are actively seeking to subvert the implementation of the SB 54 reform.  Indeed, they are willing to renege on their compromise in order to rob power from the people in order to restore disproportionate influence back to the delegates.  I am saddened but not surprised,” Jowers would add.

Now that a formal suit has been filed, the situation may grow uncomfortable for partisan elected officials who have to defend the state against the political party that has helped them move through the ranks.  The Utah GOP has named Governor Gary Herbert and Lieutenant Governor Spencer Cox as defendants in the case.  Though this is a standard formality whenever the state is sued, the lawsuit does mean that the Utah Republican Party is suing the state’s top policy makers.  Furthermore, Republican Attorney General Sean Reyes is constitutionally bound to defend the Governor and Lieutenant Governor in such cases.

For their part, the Attorney General’s office issued a statement saying that they view the lawsuit as a way to show the public that the office works to defend the laws passed, regardless of any personal feelings the AG might have toward those filing suit.

The lawsuit takes the action out of the hands of the Utah State Legislature and, barring any legislative action this session, prevents lawmakers from having to explain any switched votes after the last session, a tricky proposition considering that 37 House Republicans and 17 Senate Republicans voted for the final version of the legislation.

The case is Utah Republican Party v Herbert, 2:14cv-876-BCW.

CLICK HERE to view a copy of the Complaint.










NYC Wins When Everyone Can Vote!

Michael H. Drucker
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