Utah Republican Party v. Herbert

• Decision Date: 03 November 2015
• Docket Number: Case No. 2:14–cv–00876–DN–DBP.
• Citation: 144 F.Supp.3d 1263
• Parties: UTAH REPUBLICAN PARTY, Plaintiff, Constitution Party of Utah, Plaintiff and Intervenor, v. Gary R. HERBERT, in his Official Capacity as Governor of Utah, and Spencer J. Cox, in his Official Capacity as Lieutenant Governor of Utah, Defendants.
• Court: U.S. District Court — District of Utah

144 F.Supp.3d 1263

UTAH REPUBLICAN PARTY, Plaintiff,Constitution Party of Utah, Plaintiff and Intervenor,

v.Gary R. HERBERT, in his Official Capacity as Governor of Utah, and Spencer J. Cox, in his Official Capacity as Lieutenant Governor of Utah, Defendants.

Case No. 2:14–cv–00876–DN–DBP.

United States District Court, D. Utah, Central Division.

Signed Nov. 3, 2015.

Marcus R. Mumford, Mumford PC, Salt Lake City, UT, for Plaintiff.

Collin R. Simonsen, Gregory M. Simonsen, Fetzer Simonsen Booth & Jenkins PC, Salt Lake City, UT, for Plaintiff and Intervenor.

Kyle J. Kaiser, Utah Attorney General, David N. Wolf, Thomas D. Roberts, Salt Lake City, UT, for Defendants.

MEMORANDUM DECISION AND ORDER

GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION FOR SUMMARY JUDGMENT [162] AND

GRANTING IN PART AND DENYING IN PART CONSTITUTION PARTY OF UTAH'S MOTION FOR PARTIAL SUMMARY JUDGMENT [163]

DAVID NUFFER

, District Judge.

This memorandum decision and order resolves two motions: (1) Defendants' (“State”) Motion for Summary Judgment (“State Motion”)¹ and (2) the Constitution Party of Utah's (“CPU”) Motion for Partial Summary Judgment (“CPU Motion”).²

The Utah Republican Party (“URP”) filed a memorandum in opposition to the State Motion (“URP Opposition”),³ as did the CPU (“CPU Opposition”).⁴ The State filed replies to each of those memoranda in opposition.⁵

The State filed a memorandum in opposition to the CPU Motion (“State Opposition”).⁶ The CPU filed a reply (“CPU Reply”) to the State Opposition.⁷

A hearing on these motions was held on October 27, 2015.⁸

For the reasons stated below, the State Motion is GRANTED IN PART and DENIED IN PART, and the CPU Motion is GRANTED IN PART and DENIED IN PART. In addition, because “notice and a reasonable time to respond” was given⁹ as required, this order “grant[s] summary judgment for ... nonmovant”¹⁰ URP.

CONTENTS UNDISPUTED MATERIAL FACTS 1266 Registered Political Parties (“RPP”) 1267 Qualified Political Parties (“QPP”) 1268 SB207 1269 Party Membership 1269 Party Certification 1269 State's Interest or Purpose in Passing SB54 1270SUMMARY JUDGMENT STANDARD 1270DISCUSSION OF MOTIONS 1270 THE STATE MOTION 1270  The Unaffiliated Voter Provision is Unconstitutional As Applied 1270   Evidence is Sufficient to Consider an As–Applied Challenge to the Unaffiliated Voter Provision 1271   Forcing a Political Party to Allow Unaffiliated Voters in Its Primary Election Is a “Severe Burden” 1273   The Unaffiliated Voter Provision in SB54 Is a Severe Burden and Must Be Struck Down Unless There Is a Compelling State Interest 1278   The State Has Not Shown a Compelling State Interest for the Unaffiliated Voter Provision 1280   The State Is Not Entitled to Summary Judgment as to the Unaffiliated Voter Provision 1282  The Facial Challenge to SB54 Fails 1282  The State Motion is Granted in Part and Denied in Part 1283 THE CPU MOTION 1284  The Unaffiliated Voter Provision is Unconstitutional 1284  The Signature Gathering Provision is Constitutional after the Unaffiliated Voter Provision is Stricken 1284  The CPU Motion is Granted in Part and Denied in Part 1285 UTAH CODE § 20A–9–406(1)(a) REPLACES THE FUNCTION OF THE UNAFFILIATED VOTER PROVISION 1285 REMAINING CLAIMS 1286RULE 56(F) GRANT OF SUMMARY JUDGMENT FOR URP 1286CONCLUSION 1287ORDER 1287

UNDISPUTED MATERIAL FACTS¹¹

1. Senate Bill 54 (“SB54”) was enacted by the Utah State Legislature in the 2014 General Session.¹²

2. SB54 modified the Utah Election Code as it relates to the nomination of candidates, primary and general elections, and ballots.¹³

3. The sections of the Utah Code that are affected by SB54 include: 20A–1–102, 20A–1–501, 20A–5–101, 20A–6–301 through 305, 20A–9–101, 20A–9–202, 20A–9–403, and 20A–9–701.¹⁴

Registered Political Parties (“RPP ”)

4. If an organization of registered voters wishes to “place the names of candidates representing that organization upon the primary and regular general election ballots under the common organization name,” that organization must become a “registered political party” (“RPP”) under the Utah Election Code.¹⁵

5. Pursuant to Utah Code title 20A, chapter 8, an RPP is an organization of voters that: participated in the last regular general election and in at least one of the last two regular general elections, polled a total vote for any of its candidates for any office equal to 2% or more of the total votes cast for all candidates for the United States House of Representatives in the same regular general election; or has complied with the petition and organizing procedures of Utah Code title 20A, chapter 8.¹⁶

6. To qualify to nominate candidates for an upcoming election, an RPP must comply with Utah Code Section 20A–9–403

. Section 20A–9–403 requires an RPP to “either declare [its] intent to participate in the next primary election, or declare that the [RPP] chooses not to have the names of its candidates for elected office featured on the ballot at the next general election.” This is done by filing a statement with the Lt. Governor no later than 5 p.m. on November 15 of the preceding odd-numbered year.¹⁷

7. If an RPP chooses to participate in the election nomination process, it must also identify one or more registered parties whose members may vote for its candidates and whether or not unaffiliated voters may vote for their candidates.¹⁸

8. A candidate for elective office seeking the nomination of an RPP may gain access to that party's primary ballot by demonstrating they have a reasonable amount of party voters' support by completing a nomination petition process and obtaining certification.¹⁹

9. Only party members, and those registered voters a party permits, are allowed to sign a nomination petition.²⁰

10. If an RPP chooses to have the State feature the names of its candidates for elective office with the party's affiliation on the ballot at a regular general election, then the RPP must comply with the requirements of section 20A–9–403 of the Utah Election Code and “nominate its candidates for elective office in the manner prescribed in [that] section.”²¹

11. The statute provides, in pertinent part, that “candidates ... receiving the highest number of votes cast for each office at the regular primary election are nominated by their registered political party for that office.”²²

12. The Utah Election Code allows the names of the RPP's candidates for elective office to be featured with party affiliation on the ballot at a regular general election.²³

13. The candidate who receives the most votes in the party's primary election is listed on the general election ballot as the party's nominee.²⁴

Qualified Political Parties (“QPP ”)

14. A QPP is an RPP that: a) allows voters who have not registered with a political party (“unaffiliated voters”) to vote for their party's candidates in a primary election; b) permits a delegate of its party to vote on a candidate's nomination in the party's convention remotely, or provides a procedure for designating an alternative delegate; c) does not hold the party's convention before April 1 of an even year; and d) permits members of its own party to seek nomination by either or both of the following methods: 1) seeking nomination through the party's convention process or 2) collecting the requisite number of signatures on a nominating petition.²⁵

15. Under the QPP provisions, there are two alternative tracks for a person to become a candidate for placement on the primary ballot: 1) the convention nomination track; and 2) the signature gathering nomination track. Under both of those tracks the statute limits candidates to members of the party.²⁶

16. On the convention nomination track, the statute sets forth the “requirements for a member of a qualified political party who is seeking the nomination of a qualified political party.” The remaining provisions of that section refer specifically to “a member of a qualified political party.”²⁷

17. The signature gathering nomination track for the QPP is similarly limited to members of the party and those individuals the party permits to participate.²⁸

18. SB54 requires that parties who certify their intent to participate in the upcoming election as a QPP allow unaffiliated voters to participate in their primary election.²⁹

19. The State intends to enforce the “unaffiliated voters” provision of the QPP.³⁰

20. Utah Code § 20A–9–408

, as amended by SB54, requires that a candidate for statewide office, who chooses to force a contested primary for a QPP, must obtain the signatures of 28,000 registered voters. Similar signature requirements are required for other offices.³¹

21. Under SB54, a political party may follow either the “RPP path”³² or the “QPP path”³³ to place candidates on a ballot.

SB207

22. In the 2015 General Session, the Utah State Legislature passed Senate Bill 207, which clarifies that candidates of an RPP must be members of the RPP unless the RPP's bylaws permit otherwise.³⁴

Party Membership

23. Membership in the Utah Republican Party “is open to any resident of the State of Utah who registers to vote as a Republican and complies with the Utah Republican Party Constitution and Bylaws, and membership may be further set forth in the Utah Republican Party Bylaws.”³⁵

24. To be a member of the Constitution Party of Utah, in good standing, a person must 1) “[d]eclare agreement with principles set forth in the platform of the Constitution Party of Utah;” and 2) “[d]eclare membership by voter registration in the party” and be “a resident of Utah.”³⁶

25. There are 610,654 unaffiliated registered voters in Utah.³⁷

26. There are about 640,000 registered Republicans in Utah. By designating itself as a QPP, the URP's primary will allow almost an equal number of unaffiliated voters to the number of registered Republicans in the State.³⁸

27. There are 4,183 members of the CPU in Utah.³⁹ By designating itself as a QPP, it is possible that CPU's membership could unanimously reject a candidate and yet that candidate could still appear on the...