892 F.3d 1066 (10th Cir. 2018), 16-4091, Utah Republican Party v. Cox

Docket Nº:16-4091, 16-4098
Citation:892 F.3d 1066
Opinion Judge:EBEL, Circuit Judge.
Party Name:UTAH REPUBLICAN PARTY, Plaintiff-Appellant, v. Spencer J. COX, in his official capacity as Lieutenant Governor of Utah, Defendant-Appellee. and Utah Democratic Party, Plaintiff Intervenor, Utah Republican Party, Plaintiff, and Utah Democratic Party, Intervenor Plaintiff-Appellant, v. Spencer J. Cox, in his official capacity as Lieutenant ...
Attorney:Marcus Mumford, Mumford Law, Salt Lake City, Utah, for Plaintiff-Appellant. David P. Billings, Fabian VanCott, Salt Lake City, Utah (Peter W. Billings and Charles A. Stormont, Fabian VanCott, Salt Lake City, Utah, and Clemens A. Landau, Zimmerman Jones Booher, Salt Lake City, Utah, with him on th...
Judge Panel:Before TYMKOVICH, Chief Judge, EBEL, and LUCERO, Circuit Judges. Chief Judge Tymkovich TYMKOVICH, C.J., concurring in denial of rehearing en banc. TYMKOVICH, C.J., concurring in part and dissenting in part.
Case Date:June 08, 2018
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit
 
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Page 1066

892 F.3d 1066 (10th Cir. 2018)
UTAH REPUBLICAN PARTY, Plaintiff-Appellant,
and
Utah Democratic Party, Plaintiff Intervenor,
v.
Spencer J. COX, in his official capacity as Lieutenant Governor of Utah, Defendant-Appellee.
Utah Republican Party, Plaintiff,
and
Utah Democratic Party, Intervenor Plaintiff-Appellant,
v.
Spencer J. Cox, in his official capacity as Lieutenant Governor of Utah, Defendant-Appellee.
Nos. 16-4091, 16-4098
United States Court of Appeals, Tenth Circuit
June 8, 2018
Page 1067 [Copyrighted Material Omitted] Page 1068 [Copyrighted Material Omitted] Page 1069 [Copyrighted Material Omitted] Page 1070 [Copyrighted Material Omitted] Page 1071           Appeal from the United States District Court for the District of Utah (D.C. No. 2:16-CV-00038-DN) (D. Utah)          Marcus Mumford, Mumford Law, Salt Lake City, Utah, for Plaintiff-Appellant.          David P. Billings, Fabian VanCott, Salt Lake City, Utah (Peter W. Billings and Charles A. Stormont, Fabian VanCott, Salt Lake City, Utah, and Clemens A. Landau, Zimmerman Jones Booher, Salt Lake City, Utah, with him on the briefs), for Plaintiff-Intervenor-Appellant.          Tyler R. Green (Stanford E. Purser with him on the brief), Utah Attorney General’s Office, Salt Lake City, Utah, for Defendant-Appellee.          Before TYMKOVICH, Chief Judge, EBEL, and LUCERO, Circuit Judges.           ORDER          These matters are before the court on the Utah Republican Party’s Petition for Rehearing or Rehearing En Banc . We also have a response from the appellee and, per the court’s order dated May 30, 2018, a reply in support. In addition, we have also considered the amicus curiae brief of the Institute for Free Speech and we direct the clerk to file that brief formally effective the date of this order. See 10th Cir. R. 29.1.           Upon consideration of all the materials, the request for panel rehearing is denied. A panel majority has, however, concluded that a minor and sua sponte amendment of the decision is appropriate. The opinion is, therefore, revised to add a footnote to page 47. The opinion is otherwise unchanged. The clerk is directed to file the attached revised version nunc pro tunc to the original filing date of March 20, 2018.          The appellant’s Petition, as well as the response, reply, and amicus curiae brief, were also circulated to all the active judges of the court who are not disqualified. See Fed. R. App. P. 35(a). As no judge on the original panel or the en banc court requested that a poll be called, that part of the Petition seeking en banc reconsideration is likewise denied.           Chief Judge Tymkovich has written separately to concur in the denial of en banc rehearing.          TYMKOVICH, C.J., concurring in denial of rehearing en banc.          I concur in the court’s denial of rehearing en banc. The majority and dissent clearly laid out the dueling arguments. I write separately to note the issues raised here deserve the Supreme Court’s attention. The panel majority pledges continued faith in an oft-repeated strand of Supreme Court dicta which, as my dissent argues, Page 1072 has outlived its reliability. At this point, the Supreme Court’s homage to State regulation of the primary election process is little more than a nod to received wisdom. Cal. Democratic Party v. Jones, 530 U.S. 567, 572, 120 S.Ct. 2402, 147 L.Ed.2d 502 (2000); see, e.g., American Party of Tex. v. White, 415 U.S. 767, 781, 94 S.Ct. 1296, 39 L.Ed.2d 744 (1974).          Yet circumstances are much changed. Recent Supreme Court cases like California Democratic Party v. Jones suggest this dicta does not provide the whole truth. So too, do facts on the ground. The behemoth, corrupt party machines we imagine to have caused the progressive era’s turn to primaries are now, in many respects, out of commission. In important ways, the party system is the weakest it has ever been— a sobering reality given parties’ importance to our republic’s stability. And given new evidence of the substantial associational burdens, even distortions, caused by forcibly expanding a party’s nomination process, a closer look seems in order. The time appears ripe for the Court to reconsider (or rather, as I see it, consider for the first time) the scope of government regulation of political party primaries and the attendant harms to associational rights and substantive ends.           OPINION          EBEL, Circuit Judge.           These appeals are only the most recent volley in the spate of litigation that has dogged the Utah Elections Amendments Act of 2014, commonly known as SB54, since it was signed into law in March 2014. At issue here, SB54 reorganized the process for qualifying for a primary ballot in Utah, most importantly by providing an alternative signature-gathering path to the primary election ballot for candidates who are unable or unwilling to gain approval from the central party nominating conventions. Prior to the passage of SB54, the Utah Republican Party ("URP") selected its candidates for primary elections exclusively through its state nominating convention, and it would prefer to continue to do so.          In this litigation, the URP sued Utah Lieutenant Governor Spencer Cox in his official capacity ("the State")1, alleging that two aspects of SB54 violate the URP’s freedom of association under the First Amendment, as applied to the States by the Fourteenth Amendment. The two challenged sections (1) require parties to allow candidates to qualify for the primary ballot through either the nominating convention or by gathering signatures, or both (the "Either or Both Provision"); and (2) require candidates pursuing the primary ballot in State House and State Senate elections through a signature gathering method to collect a set number of signatures (the "Signature Requirement"). In two separate orders, the United States District Court for the District of Utah balanced the URP’s First Amendment right of association against the State’s interest in managing and regulating elections, and rejected the URP’s claims. Re-conducting that balancing de novo on appeal, we AFFIRM.           I. BACKGROUND           According to its constitution and bylaws, the URP’s process for nominating a candidate to the general election proceeds along a singular path. Candidates present their candidacy to the delegates at the party convention, and the delegates then caucus for nominees for each office. If a single candidate achieves over 60% of the caucus vote, that candidate is certified to the state for placement on the general election ballot, and no primary is held. If no candidate Page 1073 receives 60% of the convention vote, the top two candidates proceed to a state-administered primary election involving only URP members. The winner of that primary election is then certified to the state for placement on the general election ballot.          In 2014, the Utah Legislature— comprised of overwhelming Republican majorities in both the State House and State Senate— passed SB54, which addressed this process. Specifically, SB54 created two types of political parties: Registered Political Parties ("RPPs") and Qualified Political Parties ("QPPs"). Both RPPs and QPPs are eligible to have the name of the party printed next to their candidates on the general election ballot, Utah Code § 20A-6-301(1)(d); the only significant difference being how each is permitted to qualify candidates for its primary election. Members of RPPs who wish to participate in a primary election may do so only by gathering the signatures of 2% of the eligible primary voters for the office sought. Utah Code § 20A-9-403(3)(a).          If a party chooses to register as a QPP, however, it may still hold a caucus, and may certify the winners of the caucus to the primary ballot as before. See generally Utah Code § 20A-9-406 et seq. But unlike under the previous system, a party may not restrict access to the primary ballot just to candidates who emerge from the party convention. Under SB54, a candidate who is unwilling or unable to gain placement on the primary ballot through the caucus and convention may still qualify for the primary by gathering a set number of signatures by petition from eligible primary voters.2 Specifically, SB54 provides that in order to qualify as a QPP the party must allow its members "to seek the registered political partys nomination for any elective office by the member choosing to seek the nomination by either or both of the following methods: (i) seeking the nomination...

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