constitution party motion to intervene in count my vote lawsuit

8/10/2019 Constitution Party motion to intervene in Count My Vote lawsuit

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Collin R. Simonsen (12661)Gregory M. Simonsen (4669)FETZER SIMONSEN BOOTH &JENKINS,P.C.

50 West Broadway, Suite 1200

Salt Lake City, UT 84101Telephone: (801) 328-0266

Facsimile: (801) 328-0269

[email protected]

[email protected]

Attorneys for Plaintiff and Intervenor Constitution Party of Utah

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF UTAH, CENTRAL DIVISION

CONSTITUTION PARTY OF UTAH, a

registered political party of Utah,

Plaintiff and Intervenor,

UTAH REPUBLICAN PARTY,

Plaintiff,

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.

MOTION TO INTERVENE

Case No. 2:14-cv-00876 BCW

Magistrate Judge Brooke C. Wells

I. Relief Sought.

The Constitution Party of Utah (Constitution Party) seeks an order granting it leave to

intervene as a plaintiff and to file its complaint in the present matter, Case No. 2:14-cv-00876.

Case 2:14-cv-00876-DN Document 10 Filed 12/23/14 Page 1 of 124
mailto:[email protected]:[email protected]:[email protected]


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II. Grounds.

Rule 24(b) of the Federal Rules of Civil Procedure allows for Permissive Intervention

by one party who timely moves to intervene and has a claim or defense that shares with the

main action a common question of law or fact. Fed. Rules Civ. Proc. R. 24(b)(1)(B). The

Constitution Party, having a claim that shares a common question of law and fact with Plaintiff,

Utah Republican Party, hereby timely moves to intervene in the present matter number.

The Constitution Partys proposed complaint (Constitution Party Complaint) is

attached herewith as Exhibit A.

III. Fact Statement.

1. The Utah Republican Party (Republican Party) filed a complaint (the

Republican Party Complaint) on December 1, 2014. The Republican Party Complaint is

attached herewith as Exhibit B.

2. The Republican Party Complaint alleges, among other things, that a recently

enacted bill, Senate Bill 54 (SB54), which amends the Utah Election Code, is unconstitutional

as a violation of the First and Fourteenth Amendments to the United States Constitution. See e.g.

Republican Party Complaint 1, 8-10.

3.

Like the Republican Party, the Constitution Party is a registered political party of

the State of Utah. The Constitution Party is affiliated with the National Constitution Party

located in Lancaster, Pennsylvania.

https://advance.lexis.com/api/document/collection/statutes-legislation/id/4YF7-GVJ1-NRF4-42GT-00000-01?context=1000516https://advance.lexis.com/api/document/collection/statutes-legislation/id/4YF7-GVJ1-NRF4-42GT-00000-01?context=1000516


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4.

SB54 requires, among other things, that candidates for a party participate in a

primary election. Like the Republican Party, the Constitution Party has a caucus/convention

system for nominating candidates. The Constitution Party Bylaws are attached herewith as

Exhibit Cand are available athttp://www.constitutionpartyofutah.com/bylaws/,retrieved

December 9, 2014.

5. Article IX of the Constitution Party Bylaws governs how nominees for political

office are chosen. For example, Article IX.A requires a nominee to obtain the majority of votes

of the delegates at the state convention.

6. As alleged in the Republican Party Complaint, SB54 impermissibly compels

political parties to utilize a primary system instead of a caucus/convention system for nominating

candidates. For this and other reasons, the Republican Party Complaint alleges that SB54

violates its First and Fourteenth Amendment rights. See e.g.Republican Party Complaint

generally and in particular 108-112.

7. The Constitution Party alleges many of the same things in its complaint. See e.g.

Constitution Party Complaint 36, 37.

8. Both the Republican Party Complaint and the Constitution Party Complaint allege

trademark violations. Republican Party Complaint 119-122, Constitution Party Complaint

43- 48.

9. Despite the numerous similarities, the Constitution Party Complaint includes

allegations that are unique to the Constitution Party. For example, the complaint alleges that the

Constitution Party is a small political party and, considering that the Republican Party is the

http://www.constitutionpartyofutah.com/bylaws/http://www.constitutionpartyofutah.com/bylaws/http://www.constitutionpartyofutah.com/bylaws/http://www.constitutionpartyofutah.com/bylaws/


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most dominant party in the State, in terms of the number of its members and in the success it has

had electing its nominees to office at the federal, state, and local levels (Republican Party

Complaint 32), the Constitution Party is vulnerable to potential raiding activities from larger

parties enabled by SB54. Constitution Party Complaint 21.

10. Indeed, one of the bill's sponsors said that the bill provides an opportunity for a

state that is dominated by a single party to reach out and grab more people.

http://www.stgeorgeutah.com/news/archive/2014/03/06/mgk-count-vote-bill-passed-state-house-

senate-goes-governor/#.UxoKaz9dVBE,retrieved December 12, 2014 (seeExhibit Dhereto).

Presumably this would include Constitution party members.

11. According to some accounts, the filing of the present matter has caused

contention within the Republican Party. See

http://www.deseretnews.com/article/865617185/The-hullabaloo-behind-the-Count-My-Vote-

lawsuit.html,retrieved December 9, 2014 (seeExhibit Dhereto).

12. Furthermore, I would argue what we are doing is the death of the caucus-

convention system, Rep. Jon Stanard, R-St. George said. Within a number of years it will not

exist when we pass this bill. http://www.stgeorgeutah.com/news/archive/2014/03/06/mgk-

count-vote-bill-passed-state-house-senate-goes-governor/#.UxoKaz9dVBE,retrieved December

12, 2014 (seeExhibit Dhereto).

13. And Rep. Ken Ivory, R-West Jordan, said he believed the bill was

unconstitutional, as the state legislature is deciding for the states political parties how they will

http://www.stgeorgeutah.com/news/archive/2014/03/06/mgk-count-vote-bill-passed-state-house-senate-goes-governor/#.UxoKaz9dVBEhttp://www.stgeorgeutah.com/news/archive/2014/03/06/mgk-count-vote-bill-passed-state-house-senate-goes-governor/#.UxoKaz9dVBEhttp://www.stgeorgeutah.com/news/archive/2014/03/06/mgk-count-vote-bill-passed-state-house-senate-goes-governor/#.UxoKaz9dVBEhttp://www.deseretnews.com/article/865617185/The-hullabaloo-behind-the-Count-My-Vote-lawsuit.htmlhttp://www.deseretnews.com/article/865617185/The-hullabaloo-behind-the-Count-My-Vote-lawsuit.htmlhttp://www.deseretnews.com/article/865617185/The-hullabaloo-behind-the-Count-My-Vote-lawsuit.htmlhttp://www.stgeorgeutah.com/news/archive/2014/03/06/mgk-count-vote-bill-passed-state-house-senate-goes-governor/#.UxoKaz9dVBEhttp://www.stgeorgeutah.com/news/archive/2014/03/06/mgk-count-vote-bill-passed-state-house-senate-goes-governor/#.UxoKaz9dVBEhttp://www.stgeorgeutah.com/news/archive/2014/03/06/mgk-count-vote-bill-passed-state-house-senate-goes-governor/#.UxoKaz9dVBEhttp://www.stgeorgeutah.com/news/archive/2014/03/06/mgk-count-vote-bill-passed-state-house-senate-goes-governor/#.UxoKaz9dVBEhttp://www.stgeorgeutah.com/news/archive/2014/03/06/mgk-count-vote-bill-passed-state-house-senate-goes-governor/#.UxoKaz9dVBEhttp://www.deseretnews.com/article/865617185/The-hullabaloo-behind-the-Count-My-Vote-lawsuit.htmlhttp://www.deseretnews.com/article/865617185/The-hullabaloo-behind-the-Count-My-Vote-lawsuit.htmlhttp://www.stgeorgeutah.com/news/archive/2014/03/06/mgk-count-vote-bill-passed-state-house-senate-goes-governor/#.UxoKaz9dVBEhttp://www.stgeorgeutah.com/news/archive/2014/03/06/mgk-count-vote-bill-passed-state-house-senate-goes-governor/#.UxoKaz9dVBE


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complaints allege trademark infringement. Further similarities in fact and law can be found by a

review of the complaints.

c. The Constitution Party is Not Adequately Protected by Republican

Partys Suit.

The Constitution Party needs to be a party to this litigation to protect its interests because

it is affected differently than the Republican Party.

The Republican Party alleges that it is the dominant party in the State of Utah.

Republican Party Complaint 32. Indeed, Defendants, along with the State Senate Majority

Leader and the Speaker of the House, are members of the Republican Party. See

http://garyherbert.com/2012/11/proud-to-be-a-republican/,http://ballotpedia.org/Spencer_Cox,

http://www.utahsenate.org/aspx/senmember.aspx?dist=9,and

http://le.utah.gov:443/house2/index.html,retrieved December 9, 2014 (seeExhibit Dhereto).

The Republican Party enjoys a supermajority in the legislature.

http://www.deseretnews.com/article/865616838/Utah-GOP-fractured-over-Count-My-Vote-

lawsuit.html?pg=all,retrieved December 15, 2014 (seeExhibit Dhereto).

Also, the Republican controlled legislature and Governor Herbert passed SB54.

http://www.ksl.com/?nid=960&sid=29016444,retrieved December 9, 2014 (seeExhibit D

hereto). The present lawsuit has caused a rift among Republicans, according to some accounts.

Seehttp://www.deseretnews.com/article/865617185/The-hullabaloo-behind-the-Count-My-Vote-

lawsuit.html,retrieved December 9, 2014 (seeExhibit Dhereto).

http://garyherbert.com/2012/11/proud-to-be-a-republican/http://garyherbert.com/2012/11/proud-to-be-a-republican/http://ballotpedia.org/Spencer_Coxhttp://ballotpedia.org/Spencer_Coxhttp://ballotpedia.org/Spencer_Coxhttp://www.utahsenate.org/aspx/senmember.aspx?dist=9http://www.utahsenate.org/aspx/senmember.aspx?dist=9http://le.utah.gov:443/house2/index.htmlhttp://le.utah.gov:443/house2/index.htmlhttp://www.deseretnews.com/article/865616838/Utah-GOP-fractured-over-Count-My-Vote-lawsuit.html?pg=allhttp://www.deseretnews.com/article/865616838/Utah-GOP-fractured-over-Count-My-Vote-lawsuit.html?pg=allhttp://www.deseretnews.com/article/865616838/Utah-GOP-fractured-over-Count-My-Vote-lawsuit.html?pg=allhttp://www.ksl.com/?nid=960&sid=29016444http://www.ksl.com/?nid=960&sid=29016444http://www.deseretnews.com/article/865617185/The-hullabaloo-behind-the-Count-My-Vote-lawsuit.htmlhttp://www.deseretnews.com/article/865617185/The-hullabaloo-behind-the-Count-My-Vote-lawsuit.htmlhttp://www.deseretnews.com/article/865617185/The-hullabaloo-behind-the-Count-My-Vote-lawsuit.htmlhttp://www.deseretnews.com/article/865617185/The-hullabaloo-behind-the-Count-My-Vote-lawsuit.htmlhttp://www.deseretnews.com/article/865617185/The-hullabaloo-behind-the-Count-My-Vote-lawsuit.htmlhttp://www.deseretnews.com/article/865617185/The-hullabaloo-behind-the-Count-My-Vote-lawsuit.htmlhttp://www.ksl.com/?nid=960&sid=29016444http://www.deseretnews.com/article/865616838/Utah-GOP-fractured-over-Count-My-Vote-lawsuit.html?pg=allhttp://www.deseretnews.com/article/865616838/Utah-GOP-fractured-over-Count-My-Vote-lawsuit.html?pg=allhttp://le.utah.gov:443/house2/index.htmlhttp://www.utahsenate.org/aspx/senmember.aspx?dist=9http://ballotpedia.org/Spencer_Coxhttp://garyherbert.com/2012/11/proud-to-be-a-republican/


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Because the Republican Party passed the measure, it is likely that the Republican Party

will have different motives, different reasons to settle, different levels of determination to

prosecute, and different goals in litigation.

The comments by Representatives Ivory and Standard, contrasted to those of Governor

Herbert, show that the Republican Partys view is essentially schizophrenic, which should give

any potential party pause when considering whether or not its interests will be adequately

represented by the Plaintiff. The Constitution Party must be a party to this action in order to

protect its interests.

Furthermore, the Constitution Party is harmed differently and possibly to a greater degree

than the Republican Party due to the Constitution Partys smaller status and fewer resources.

See Constitution Party Complaint 27. Constitution Party candidates do not have as much

money, infrastructure, or volunteers as the Republican Party, thus making the requirements of

SB54 potentially more onerous for the Constitution Party than for the Republican Party. This

means that the Constitution Partys as-applied case against SB54 may be stronger than the

Republican Partys.

Furthermore, the Constitution Party believes that it is more at risk from raiding activities

by larger parties than the Republican Party. SB54 makes it easier for larger parties to engage in

raiding and other ballot box manipulations, according to the Constitution Party Complaint. The

Court should allow the Constitution Party to prove this at trial.



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CONCLUSION

For the foregoing reasons, the Court should allow the Constitution Party to intervene as a

plaintiff in this matter.

DATED this 23rdday of December, 2014.

FETZER SIMONSEN BOOTH &JENKINS,P.C.

/s/Collin R. SimonsenGregory M. Simonsen

Attorneys for Plaintiff and Intervenor

Constitution Party of Utah



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CERTIFICATE OF SERVICE

I hereby certify that on the 23rdday of December, 2014, I electronically filed the

foregoing MOTION TO INTERVENE with the Clerk of Court using the CM/ECF system

which sent notification of such filing to the following:

Parker Douglas

[email protected],[email protected] Marcus R. Mumford

[email protected],[email protected],[email protected]

David N. [email protected],[email protected],[email protected],[email protected]

Manual Notice List

(No manual recipients)

/s/

Shellee Timmreck



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Exhibit A



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Collin R. Simonsen (12661)Gregory M. Simonsen (4669)FETZER SIMONSEN BOOTH &JENKINS,P.C.

50 West Broadway, Suite 1200

Salt Lake City, UT 84101Telephone: (801) 328-0266

Facsimile: (801) 328-0269

[email protected]

[email protected]

Attorneys for Plaintiff and Intervenor Constitution Party of Utah

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF UTAH, CENTRAL DIVISION

CONSTITUTION PARTY OF UTAH, a

registered political party of Utah,

Plaintiff and Intervenor,


Plaintiff,

v.

GARY R. HERBERT, in his official capacityas Governor of Utah, and SPENCER J. COX,

in his official capacity as Lieutenant

Governor of Utah,

Defendants.

COMPLAINT

(Proposed)

Case No. 2:14-cv-00876 BCW

Magistrate Judge Brooke C. Wells



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This Complaint is filed by the Constitution Party of Utah (the Constitution Party) as an

intervening Plaintiff and complains and alleges against Gary R. Herbert and Spencer J. Cox

(Defendants) as follows:

PARTIES AND JURISDICTION

1. The Constitution Party is a registered political party of Utah and a part of the

National Constitution Party.a

2. The Utah Republican Party is the original Plaintiff in this matter and its

Complaint is on file with the Court.

3. Defendant Gary R. Herbert is the Governor of Utah and, in that capacity,

supervises the official conduct of all executive and ministerial officers, including those

responsible for the enforcement of Senate Bill 54 (SB54).

4.

Defendant Spencer J. Cox is the Lieutenant Governor of Utah and, in that

capacity, is also the chief election officer of Utah pursuant to Utah Code 67-1a-2(2)(a) and

responsible for the enforcement of SB54.

5. Defendants are responsible for the administration of Utahs election process,

including overseeing all voter registration activities and coordinating with local, state andfederal

officials to ensure compliance with state and federal election laws, including SB54.

a The national location for the Constitution Party is Lancaster, Pennsylvania.

http://www.constitutionparty.com/contact/. The state party is located in Bountiful, Utah.

http://www.constitutionpartyofutah.com/contact-us/



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6.

This Court has jurisdiction pursuant to 28 U.S.C. 1331 and 1343, in that it

presents a federal question involving constitutionally protected rights. Declaratory and

injunctive relief is authorized by 28 U.S.C. 2201 and 2202. State law questions are

appropriate in this Court as supplemental claims over which this Court has jurisdiction pursuant

to 28 U.S.C. 1367.

7. Venue is proper in this Court pursuant to 28 U.S.C. 1391.

8. This case is brought pursuant to the First, Ninth, Tenth and Fourteenth

Amendments to the United States Constitution, Utah Constitution Art. I., Sec. 2 and Sec. 15 and

42 U.S.C. 1983, 15 U.S.C. 1116, for declaratory and injunctive relief, for the purpose of

protecting and preserving the important associational rights, free speech, due process rights,

political power and rights, and trademark rights of the Constitution Party and its members in how

the party selects and endorses its nominees for elected office.

GENERAL ALLEGATIONS

9. Governor Herbert signed SB54 into law which significantly amended the Utah

Election Code. SB54 compels political parties to submit to new and onerous requirements in

their nominating process.

10. In particular, SB54 requires, with exceptions, that a political party submit to a

primary system for nominating candidates for political office. In the primary system, mandated

by SB54, an individual that seeks the nomination of a party must submit her or his name to the

state as a candidate and list her or his preferred party. The individual must also have obtained

the signatures of 2% of the party members in the state. The individual is not required to have



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signed a pledge to uphold and advance the party platform nor obtain the endorsement of the party

in any way prior to candidacy aside from that individual having obtained the signatures of 2% of

the party membership nor even be a member of the party.

11. The Constitution Party prefers, in its judgment, to utilize the caucus/convention

system to choose candidates. The Constitution Party believes that it is important that under this

system an individual ultimately receives the majority of the votes. Constitution Party Bylaws

Art. IX.A http://www.constitutionpartyofutah.com/bylaws/,retrieved December 6, 2014. See

Exhibit A hereto.

12. Conversely, under the scheme in SB54, the winning candidate in a primary

system only needs to obtain a plurality of the votes of party members to become a party

candidate. This means that the ultimate candidate, appearing under the partys banner and

ostensibly with the partys official endorsement, may be opposed by the majority of the partys

members, having obtained the most votes in a fractured, multi-candidate primary.

13. The Constitution Party, in its judgment, believes that the caucus/convention

system has many benefits, which include, but are not limited to, encouraging the lively debate of

issues among party members, the obtaining of consensus on issues and candidacies, and

localization of control over party activities as opposed to the influence of the state and special

interests in party action.

14. The Constitution Party has high standards for its candidates, and if a candidate

does not live up to these standards, the Constitution Partys executivecommittee has the power



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to remove the partys endorsement. These standards are outlined in the Bylaws. For example,

the candidate is chosen according to:

a. The candidates understanding of correct constitutional principles;

b. The candidates ability to articulate these principles;

c. The ability to dress and act in a manner that will give credit to the party

when appearing as the partys representative in public;and

d. The desire to run for the designated office on the basis of principles rather

than personal interests.

15. Further, endorsed candidates of the Constitution Party of Utah shall:

a. Be members of the party in good standing, as defined in the party

constitution and Bylaws;

b.

Sign a pledge to abide by the state and national party platforms; and

c. Be evaluated and endorsed by the candidates closest locally approved and

recognized party affiliate, corresponding to that political race.

16. Furthermore, the Constitution Party bylaws require that:

a. For State wide office, endorsement shall be by the state convention.

b. Endorsement and support may be withdrawn by a three-fourths vote of the

executive committee when in their judgment the candidate criteria in the party

constitution and Bylaws have not been met. Such a candidate shall not use the

Constitution Party name and shall be subject to legal action for failure to comply.



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http://www.constitutionpartyofutah.com/bylaws/,retrieved December 12, 2014. See

Exhibit A hereto.

17. Great thought has gone into the Constitution Partys system of nominating a good

candidate with good character and qualifications. SB54 substitutes the partys judgment with a

system that the state thinks is better. In particular, SB54 does not allow the Constitution Party to

remove its nominee and replace her with another, does not allow the Constitution Party to require

the nominee to sign a pledge, does not allow the Constitution Party to require its nominee to

even be a member of the party, and does not allow the Constitution Party to hold a

caucus/convention system, with the votes of only party members to nominate candidates unless

the Constitution Party submits to qualifications that burden its associational rights.

18. Under SB54, the state can use the Constitution Partys logo and name on the

ballot for an individual who does not meet the criteria of the Constitution Partys Bylaws. This

is a violation of the partys and members First Amendment rights of free speech and association.

It imposes a severe burden on all parties, and it imposes a severe burden to the Constitution Party

in particular.

19. When SB54 was passed, the legislature was comprised entirely of Republicans

and Democrats. These two major parties have essentially told all other political parties how their

candidates will be chosen. This will likely work to marginalize and weaken smaller parties.

20. The Republican Party currently enjoys a supermajority in the state legislature and

controls the Governors office. http://www.deseretnews.com/article/865616838/Utah-GOP-



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fractured-over-Count-My-Vote-lawsuit.html?pg=all, retrieved December 15, 2014. See Exhibit

A hereto.

21. Smaller political parties are especially vulnerable to the consequences of SB54.

In particular, larger parties may manipulate smaller parties that it believes are spoilers by

creating dummy memberships, running Manchurian candidates, and engaging in party raiding.

Such tactics have been documented.

http://www.freep.com/apps/pbcs.dll/article?AID=/20120228/NEWS15/120228049/Many-

Democrats-voting-Santorum-Paul-deny-Romney-Michigan-

win&odyssey=mod%7Cbreaking%7Ctext%7CFRONTPAGEand

http://abcnews.go.com/blogs/politics/2008/05/is-limbaughs-op/,retrieved December 10, 2014.

See Exhibit A hereto. SB54 makes this easier to do because the candidate does not even have

to be a member of the party. Although the primary may be for members-only, individuals may

easily become a member of the party without any oversight by party officials to ensure that they

are not really spoilers or raiders like those who participated in Rush Limbaughs Operation

Chaos. For example, SB54 takes away the Constitution Partys ability to assure that delegates

are members in good standing for at least ten days prior to voting. Constitution Party

Bylaws Art. VI Voting C.2.

22. In the national platform, the party explicitly opposes burdens on electoral

processes. Additional restrictions and obligations governing candidate eligibility and campaign

procedures burden unconstitutionally the fairness and accountability of our political system.

http://www.constitutionparty.com/election-reform/. See Exhibit A hereto.



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23.

It is part of the Constitution Partys political message that regulations like SB54

are undesirable and unconstitutional.

24. The Constitution Party believes, in its judgment, that the caucus/convention

system protects the party and its message against such interference. The legislature, controlled

by a supermajority by the Republican Party, should not be allowed to substitute its judgment for

that of the private political parties and individuals of Utah because governments derive[e] their

just powers from the consent of the governed. Declaration of Independence 2. SB54 turns

this principal on its head by having the government dictate to individuals and private political

parties how they choose nominees for public office.

25. Under SB54, a candidate could be nominated by the Constitution Party but

designated unaffiliated on the ballot. At the same time, an individual not nominated by the

Constitution Party could have the partys name and logo associated with it. The State of Utah

and Defendants would be misleading the voters and forcing the political association and

disassociation of individuals contrary to the partys will.

26. Since SB54 uses the term unaffiliated for those candidates who have not won

the primary, it is strongly implied that the candidates who did win the primary (but not the

caucus/convention vote) and who have the party name and logo associated with them, are

affiliatedwith the party. The term affiliated means officially connected with. Since the

candidate may not actually be officially connected with the party, the ballot will mislead voters.

27. SB54 works an especial hardship on smaller political parties and their potential

candidates because smaller parties and their potential candidates have fewer resources to appeal



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to a widespread group of people. The caucus system allows the candidates to appeal to delegates

at the convention itself instead of producing signs, radio ads, mass mailing or other methods of

expensive advertising.

28. The Constitution Party of Idaho recently had to deal with problems created by

Idahos law which has some similarities to SB54. One newspaper reported that the Constitution

Party Rejects own Candidate for Guv, but He Remains on Ballot.

http://www.spokesman.com/blogs/boise/2014/aug/13/constitution-party-rejects-own-candidate-

guv-he-remains-ballot/,retrieved December 15, 2014. See Exhibit A hereto.

29. When a political party is forced to run a candidate that is listed as unaffiliated

on the ballot against another candidate it has rejected who enjoys the benefit of the name of the

party on the ballot, the partys associational rights have been severely burdened and its rights to

exercise political power under Utah Constitution Art. I. Sec. 2 have been harmed.

30. The State of Utah does not have a compelling interest in forcing the use of a

primary system because the caucus/convention system addresses the states interest adequately.

In other words, the state must prove that the marginal benefit, if any, of a primary system over a

caucus system is compelling if the state wants to justify its violation of the Constitution Partys

associational rights.

31. SB54 is not narrowly tailored to address the states interest and the states interest

could be addressed in many less burdensome ways.

32. Not only does SB54 prevent the Constitution Party from holding a

convention/caucus system to nominate its candidate, it also prevents the Constitution Party from



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choosing any other kind of democratic system such as having a run-off primary, an election with

seniority system (as many state bar sections use for the election of its officers), a weighted

primary or any other system calculated to obtain the best individuals to represent the party.

33. SB54 does allow a political party to have a caucus/convention system with a

major qualification: the party must allow non-members to vote. This qualification leads to the

same problem that the primary system does and is a violation of the partys associational rights.

It allows the possibility of outside influence and party raiding. It takes away the partys ability to

ensure that members are in good standing and that delegates have been members for at least 10

days. It takes away the partys ability to ensure that those who vote and those who run have

signed a pledge supporting the party platform. In all of these ways, SB54s modified

caucus/convention system places a severe burden on the partys association rights under the First

Amendment and otherwise violates the Constitution Partys rights and powers under the Utah

and United States Constitutions.

34. Although SB54 allows a closed primary system, it is essentially open to any

voter who wishes to easily register as a party member without oversight by the party.

FIRST CLAIM FOR RELIEF

(Declaratory Judgment)

35.

The Constitution Party incorporates by this reference all other allegations of this

Complaint.

36. An actual controversy exists between the Constitution Party and the Defendants

over the constitutionality of SB54. The Court should declare, pursuant to 28 U.S.C. 2201, that:



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a.

SB54 is a facialviolation of the Constitution Party and its members right

to peaceably assemble and seek redress of grievances under the First and Fourteenth

Amendments of the United States Constitution.

b. SB54 is an as-appliedviolation of the Constitution Party and its

members right to peaceably assemble and seek redress of grievances under the First and

Fourteenth Amendments of the United States Constitution.

c. SB54 is a facialviolation of the Constitution Party and its members right

to exercise political power under Utah Constitution Art. I, Sec. 2 and their individual

sovereignty and unenumerated rights recognized in the Ninth and Tenth Amendments

and substantive due process rights under the Fourteenth Amendment of the United States

Constitution.

d.

SB54 is an as-appliedviolation of the Constitution Party and its

members right to exercise political powerunder Utah Constitution Art. I, Sec. 2 and

their individual sovereignty and unenumerated rights recognized in the Ninth and Tenth

Amendments and substantive due process rights under the Fourteenth Amendment of the

United States Constitution.

e. SB54 is a facialviolation of the Constitution Party and its members right

to Free Speech under the First and Fourteenth Amendments of the United States

Constitution and the Utah Constitution Art. 1, Sec. 15, as a content basedrestriction

insofar as it forces the party and its members to endorse a candidate that the party or

members do not choose to endorse.



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f.

SB54 is an as-appliedviolation of the Constitution Party and its

members right to Free Speech under the First and Fourteenth Amendments of the United

States Constitution and the Utah Constitution Art. 1, Sec. 15, as a content based

restriction insofar as it forces the party and its members to endorse a candidate that the

party or members do not choose to endorse.

g. SB54 is a facialviolation of the Constitution Party and its members right

to Free Speech under the First and Fourteenth Amendments of the United States

Constitution and the Utah Constitution Art. 1, Sec. 15 as an impermissible time, place

and manner restrictionbecause it is not a reasonable regulation, not in proportion to the

interest served, and not narrowly drawn to meet that interest.

h. SB54 is an as-appliedviolation of the Constitution Party and its

members right to Free Speech under the First and Fourteenth Amendments of the United

States Constitution and the Utah Constitution Art. 1, Sec. 15 as an impermissible time,

place and mannerrestriction because it is not a reasonable regulation, not in proportion

to the interest served, and not narrowly drawn to meet that interest.

i. SB54 is a facialviolation of the Constitution Party and its members equal

protection rights under the Fourteenth Amendment of the United States Constitution and

the Utah Constitution Art. I, Sec. 2 insofar as it gives preference to those political parties

that abandon their rights to assemble in order to secure their party logo on the ballot, thus

showing the voters that the state prefers or endorses those parties that give up their rights.



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It also is an equal protection violation insofar as it prefers or benefits larger parties at the

expense of smaller parties.

j. SB54 is an as-appliedviolation of the Constitution Party and its

members equal protection rights under the Fourteenth Amendment of the United States

Constitution and the Utah Constitution Art. I, Sec. 2 insofar as it gives preference to those

political parties that abandon their rights to assemble in order to secure their party logo

on the ballot, thus showing the voters that the state prefers or endorses those parties over

others. It also is an equal protection violation insofar as it prefers or benefits larger

parties at the expense of smaller parties, such as the Constitution party.

37. The Constitution Party hereby incorporates by reference paragraphs 110 through

112 of the Republican Party Complaint and applies the same to itself.

SECOND CLAIM FOR RELIEF(Injunction)

38. The Constitution Party incorporates by this reference all other allegations of this

Complaint.

39. SB54 constitutes an imminent and ongoing threat by the State of Utah, acting by

and through Defendants, to deprive the Constitution Party and its members of their

constitutionally protected rights.

40. The Constitution Party and its members will suffer irreparable harm by the

enforcement of SB54.



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41.

The Court should enter a declaratory judgment and enter a permanent injunction

enjoining enforcement of SB54 to the Constitution Party.

THIRD CLAIM FOR RELIEF

(Trademark Infringement)


Complaint.

43.

The Constitution Party has developed a common law trademark and good will

associated with its name The Constitution Party. Members of the public recognize the

trademark and name and associate with it certain ideas and reputation.

44. SB54 destroys and/or infringes on the Constitution Partys trademark, good will,

and name by appropriating the same for candidates who may have no endorsement by the party

but who the state deems should have the name and good will associated with them.

45. Enforcement of SB54 will likely cause confusion among voters and misattribution

of support for or votes against the party and the candidates it truly endorses.

46. This causes irreparable harm to the Constitution Party and therefore the Court

should enjoin Defendants from enforcing SB54 in a manner that would infringe upon the

Constitution Partys rights as alleged herein.

47.

SB54 constitutes common law trademark infringement and willful infringement

under the common law.

48. Unless the Defendants are preliminarily and permanently enjoined from further

infringement, the party will continue to suffer irreparable harm. A permanent injunction is



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necessary to prevent the Defendant from further interference with the partys common law

trademark rights.

FOURTH CLAIM FOR RELIEF

(Damages, Costs and Attorneys Fees)


Complaint.

50.

The Court should enter judgment awarding the Constitution Party its damages and

costs of suit, including reasonable attorneys fees under 15 U.S.C. 1117 and 42 U.S.C.

1983, 1988.

PRAYER

Wherefore, the Court should enter judgment in favor of the Constitution Party as follows:

1. The Court should declare that SB54 is unconstitutional for the reasons herein

elucidated.

2. The Court should permanently enjoin Defendants from enforcing SB54.

3. The Court should find that SB54 constitutes an imminent trademark violation of

the Constitution Partys name and logo and award damages based thereon.

4. The Court should award damages, costs and attorneys fees as provided by law.



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DATED this _____ day of December, 2014.

FETZER SIMONSEN BOOTH &JENKINS,P.C.

Collin R. Simonsen

Gregory M. Simonsen

Attorneys for Plaintiff and IntervenorConstitution Party of Utah

Plaintiffs Address:1312 West 8780 South

West Jordan, UT 84088



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Exhibit Ato

Complaint



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Exhibit B



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Marcus R. Mumford (12737)MUMFORD PC

405 South Main Street, Suite 975

Salt Lake City, Utah 84111Telephone: (801) 428-2000Email: [email protected]

Attorney for Plaintiff Utah Republican Party

IN THE UNITED STATES DISTRICT COURTFOR THE DISTRICT OF UTAH, CENTRAL DIVISION


Plaintiff,

v.

GARY R. HERBERT, in his Official

Capacity as Governor of Utah, andSPENCER J. COX, in his Official Capacity

as Lieutenant Governor of Utah,

Defendants.

COMPLAINT

Case No. 2:14-cv-00876

Plaintiff Utah Republican Party (Party) hereby complains and alleges as follows:

1. The First and Fourteenth Amendments to the United States Constitution guarantee

to the Party and its members the right to associate in a political party, the right to act and govern

themselves as a political party, the right to vote as a party in Utah elections, the right to define

who belongs to the Party, the right to determine for itself the Partys platform and message, the

right to allocate its name, title, emblems, and endorsements to those candidates it believes will

best represent the Partys political platform, the right to determine for itself the candidate

selection process that will produce the nominee who best represents the Partys political

platform, and to not be deprived of those rights without due process of law. These are core

Case 2:14-cv-00876-BCW Document 2 Filed 12/01/14 Page 1 of 42Case 2:14-cv-00876-DN Document 10 Filed 12/23/14 Page 48 of 124


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Constitutional freedoms held individually and collectively by the members of the Utah

Republican Party, and by the Party itself.

2. While Utah election law may govern the time, place, and manner of elections, it

must accommodate and respect the rights of political parties operating within its boundaries,

especially the Partys rights to determine for itself how its nominee standard bearers are selected.

3. The Supreme Court of the United States has stated:

In no area is the political associations right to exclude more important than in theprocess of selecting its nominee. That process often determines the partys

positions on the most significant public policy issues of the day, and even whenthose positions are predetermined it is the nominee who becomes the partys

ambassador to the general electorate in winning it over to the partys views.

Unsurprisingly, our cases vigorously affirm the special place the FirstAmendment reserves for, and the special protection it accords, the process by

which a political party select[s] a standard bearer who best represents the partysideologies and preferences. The moment of choosing the partys nominee, we

have said, is the crucial juncture at which the appeal to common principles may

be translated into concerted action, and hence to political power in thecommunity.

1

4. Earlier this year, the Utah Legislature enacted, and Governor Gary R. Herbert

(collectively, with the Utah Legislature, the State) signed into law, Senate Bill 54 (SB54),

which amended the Utah election code.

5. With SB54, the State has now imposed on the Party a byzantine regimen of rules

and internal processes that is different than the rules and processes the Party has chosen for itself

to ensure that its nominees represent its political platform.

1California Democratic Party v. Jones, 530 U.S. 567, 575 (2000) (quoting Tashjian v.

Republican Party of Connecticut, 479 U.S. 208, 216 (1986), andEu v. San Francisco County

Democratic Central Committee, 489 U.S. 214, 224 (1989)).



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6. Those responsible for SB54 have admitted that the intent of the law was not

viewpoint neutral, as it was enacted to produce Party nominees for elected office who will

represent different priorities and views than the political views of Party and its members and

to make the Partys winning candidates less responsive and accountable to the Party and its

Platform.2

7. SB54 threatens to deprive the Party of the rights it should enjoy as a political

party, and did enjoy prior to SB54, and Party should not be forced to go along with the stated

purpose of SB54 to impose changes on the Partys message and the priorities expressed by the

Party in its chosen candidate selection process, and the level of responsiveness and

accountability to its Platform that the Party requests of its candidates who win elections.3

8. SB54 unconstitutionally burdens the rights of the Party by, among other things,

(1) misappropriating the Partys right to control its endorsement of candidates for elected office,

and to select and endorse nominees on the general election ballot who will best represent the

Partys political platform, (2) supplanting the Partys judgment with the judgment of the State as

to the Partys chosen candidate selection process according to what is most likely to produce

nominees who best represent the Partys political platform, (3) imposing a candidate selection

process on the Party that dilutes the primacy of its political platform and messaging in its chosen

candidate selection process, (4) mandating that the Party agree to an open or direct primary

election to select its candidates where the State allocates to itself the power to designate who will

2SeeCount My Vote, Why Change Utahs Election System?, available at

http://www.countmyvoteutah.org/facts (as accessed October 16, 2014) (hereinafter Count My

Vote).3Compare Count My Vote, withUtah Republican Party Bylaws (hereinafter Bylaws) 8.0.A

(v. 2013 Official).



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appear on the general election ballot as the Partys nominees for elected office, without

commensurate consideration in how it has not ensured that the Partys candidates are actually

selected by its members, or that the nominees are members of the Party, and (5) threatening to

deprive the Party of its right to endorse candidates on the general election ballot if it does not

comply with the States mandated candidate selection process.

9. SB54 violates the Partys constitutional right to free association and infringes on

its rights to free speech and due process, its ability to control its own brand and message, and its

authority over its endorsement, name, and emblems.

10. By this action, the Party seeks a Court order striking down SB54 as an

unconstitutional infringement on the rights of the Party and its members.

PARTIES AND JURISDICTION

11. Plaintiff Utah Republican Party is an unincorporated association established under

Title 20A of the Utah Code, with its principal place of business in Salt Lake County, Utah.

12. Defendant Gary R. Herbert is the Governor of Utah and, in that capacity,

supervises the official conduct of all executive and ministerial officers, including those

responsible for the enforcement of SB54.4

13. Defendant Spencer J. Cox is the Lieutenant Governor of Utah and, in that

capacity, also the chief election officer of Utah pursuant to Utah Code 67-1a-2(2)(a), and

responsible for the enforcement of SB54.

14. Defendants are responsible for the administration of Utahs election process,

including overseeing all voter registration activities, and coordinating with local, state, and

4Utah Code Ann. 67-1-1(1).



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federal officials to ensure compliance with state and federal election laws, including SB54.5

15. This Court has jurisdiction pursuant to 28 U.S.C. 1331 and 1343, in that it

presents a federal question involving constitutionally protected rights. Declaratory and injunctive

relief is authorized by 28 U.S.C. 2201 and 2202.

16. Venue is proper in this Court pursuant to 28 U.S.C. 1391.

17. This case is brought pursuant to the First and Fourteenth Amendments to the

United States Constitution, and 42 U.S.C. 1983, for declaratory and injunctive relief, for the

purpose of protecting and preserving the important associational rights, free speech and due

process rights, and trademark rights of the Party and its members in how the Party selects and

endorses its nominees for elected office.

GENERAL ALLEGATIONS

Current Utah Election Law

18. The people of Utah currently choose persons to serve as their federal, state, and

local government representatives by way of a biennial general election held throughout the state

on the first Tuesday after the first Monday in November of each even-numbered year.6

19. Recognizing the rights of its like-minded citizens to organize in political parties to

select and endorse candidates for office who best represent the ideologies and preferences of

those parties members, Utahs election code currently provides for like-minded voters to

organize as registered political parties in order, inter alia, to place names of candidates

representing that organization upon the primary and regular election ballots under the common

5Id. 20A-2-300.6(2)(b)

6Id. 20A-1-201.



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organization name.7

20. Utah code requires that the paper ballots, electronic ballots, and ballot sheets used

in the States general elections shall designate, where appropriate, the endorsements of political

parties nominating candidates, including by way of a political partys name, title and emblem.8

21. To communicate these party endorsements to general election voters, Utah code

mandates that the State ensure that each person nominated by any political party is placed

on the ballot under the party name and emblem and listed by party on a paper ballot, or that

the party designation of each candidate is printed [or displayed] immediately adjacent to the

candidates name on a ballot sheet or electronic ballot.9

22. Utah code also mandates that the State ensure that the paper or electronic general

election ballots or ballot sheets be designed to allow for voting by a straight party ticket, where

appropriate.10

23. Currently, Utah election code requires that registered political parties establish by

their constitution or bylaws aprocedure for selecting party candidates at the federal, state, and

county levels that allows activeparticipation by party members,11

but it otherwise leaves it to

political parties to determine for themselves how to select candidates who best represent their

partys ideologies and preferences and respects the rights of those parties to certify to the State

the names of their preferred candidates for elective office to be voted on in the general election.12

24.

Under Utah law, an organization of voters can qualify as a registered political

7Id. 20A-8-102(2).

20A-6-301.9Id. 20A-6-301(1)(d)-(g) & -301(2)(a), -302(1)(a), -303(1)(g), & -304(1)(g).

10Id. 20A-6-305(4)(d).

11Id. 20A-8-106, 20A-8-401(2)(c).

12Id. 20A-9-701(1)



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party in a number of ways, including, in the case of the Party, by having participated in the last

general election and, in at least one of the last two regular 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 election.13

25. A candidate for elected office in Utah may qualify for the general election ballot

by filing a declaration of candidacy, and, depending on whether the candidate wants to appear

with the endorsement of a political party or unaffiliated, by either:

a.

Having the persons political party certify to the State that the person is the partys

endorsed and selected nominee;14or

b. Complying with the election codes requirements for appearing as an unaffiliated or

write-in candidate.15

26. To comply with the requirement that a registered political party have a procedure

for selecting party candidates at the federal, state, and county levels that allows active

participation by party members, Utah code currently allows, but does not require, that a

registered political party may choose[] to use the States primary election process to nominate

some or all of its candidates.16

27. The Utah election code currently recognizes, as it must, that the States

procedures for a primary election cannot govern or regulate the internal procedures of a

registered political party.17

13Id. 20A-8-101.

14Id. 20A-9-701.

15Id. 20A-9-501(1), -601(1)16

Id. 20A-8-401(2)(c) & -9-403(1)(b).17Id. 20A-9-401(2).



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28. Otherwise, Utahs current election code largely leaves it up to the registered

political party to determine for itself the process by which it select[s] a standard bearer who best

represents the partys ideologies and preferences.18

29. Critically, under the pre-SB54 version of the election code, the Party retained to

itself the right to certify to the Utah Lieutenant Governor and other elected officials the names of

those standard bearer nominees who prevail in its chosen candidate selection process.19

The Utah Republican Partys Candidate Nomination Process

30.

For purposes of participating in Utah elections, voters have organized as the Utah

Republican Party to nominate and support the election of Republican candidates in partisan

races for public office, promote the principles set forth in the State Party Platform, and perform

Party functions set forth in the election laws of the State of Utah and the Constitution and

Bylaws of the Party.20

31. The Utah Republican Partys roots in Utah reach back to before it became a state

on January 4, 1896.

32. The Party is a registered political party, as that term is used in the current version

of the Utah election code, and is the most dominant party in the State, in terms of the number of

its members and in the success it has had electing its nominees to office at the federal, state, and

local levels.

33.

The Party has adopted a constitution and bylaws and received certification from

18Jones, 530 U.S. at 575;see also New York Bd. of Elections v. Lopez Torres, 552 U.S. 196, 202

(2008) (citingDemocratic Party of United States v. Wisconsin ex rel. La Follette, 450 U.S. 107,122 (1981), andJones, 530 U.S. at 574-75).19

Id. 20A-9-202(4) & -9-701.20Utah Republican Party Constitution (hereinafter Party Const.), Art. I.B (v. 2013 Official).



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the State that it is recognized as a registered political party under the Utah election code.

34. The Party has adopted a platform to express its common message on the timely

political issues of the day.

35. The Party has determined the candidate selection process that will in its view

produce the nominee who best represents its political platform.

36. That process involves a combination of a caucus/ convention and primary

election, where the members of the Party, organized by precincts, hold neighborhood caucus

meetings at a designated time and, among other things, elect a member or members of their

neighborhood to serve as delegates to the Partys county and state nominating conventions where

those delegates nominate the Partys candidates for partisan federal, state and local government

elected offices, the names of those Party nominees to be certified by the Party to the respective

Utah county clerks or Utah lieutenant governor immediately thereafter.21

37. The Partys Constitution and Bylaws establish the procedures for its

neighborhood caucus meetings.

a. The Partys Constitution and Bylaws provide that while the caucus meetings are open

to the public, only registered Republican Party members may participate, and any

officer, delegate, candidate or registered affiliated voter of a rival political party in the

state is not allowed to participate.22

b.

The Partys Bylaws mandate that participants start all caucus meetings with, among

other things, a prayer, the recitation of the pledge of allegiance, and a reading of the

Partys platform, and only after those agenda items do the members select delegates

21Id.Art. XII.1.A-.B & .2.A-.J.

22Id. Art. XII.1.A; Bylaws 9.A.3.



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to the county and state nominating conventions.23

38. The Partys Constitution and Bylaws establish the rules and procedures for its

county and state nominating conventions.

a. Similar to the neighborhood caucus meetings, the county and state nominating

conventions are open to the public, but participation is limited to those delegates

selected at the Partys neighborhood caucus meetings to nominate candidates for

partisan elective office and adopt the Party platform.24

b.

The Partys Bylaws provide that only Republican candidates who have properly filed

for elected public office as required by Utah election law and who also meet the

requirements of the Utah Republican Partywill be considered by the convention.25

c. The Partys Bylaws require that any candidate wishing to run for the Partys

nomination to elected office must sign a disclosure statement regarding the Party

Platform, and submit it to the Partys headquarters at least 30 days prior to the

convention, which the Party makes available to all delegates attending the

convention, so that the Partys delegates may consider in advance a candidates

support for and acceptance of the Platform as the standard by which that candidate

will be evaluated as the holder of public office.26

d. In the Party Platform disclosure statement, the candidate running for the Partys

nomination and endorsement must certify that he or she is not a candidate, officer,

delegate nor position holder in any party other than the Republican party and either:

23Bylaws 9.0.B.

24Party Const. Art. XII.3.A.

25Bylaws 7.5.I.1.

26Id. 8.0.A.



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i. that the candidate has read the Utah Republican Party Platform and

support[s] and accept[s] it as the standard by which my performance as a

candidate and as an officeholder should be evaluated; or

ii. that the candidate has read the Utah Republican Party Platform and, with

exception of provisions from the Platform specifically noted by the candidate,

support[s] and accept[s] it as the standard by which my performance as a

candidate and as an officeholder should be evaluated.27

e.

In the event that any candidate fails to submit a disclosure statement as required, the

Party Chairman must announce this failure to the delegates prior to balloting for that

candidates office, so that the Partys delegates may consider the candidates failure

in that respect in their selection of a nominee.28

f. Except for those situations where a candidate is running unopposed, the Party

Constitution requires that delegates cast votes at the convention to select the Partys

nominee for elected office only after substantive nominating and acceptance speeches

are made to the delegates by the individual candidates or on behalf of the individual

candidates running for the Partys nomination.29

39. In the event a field of candidates is more than two, for a single elected office, the

Partys constitution provides for the use of multiple ballots until the field is winnowed to the top

two candidates, or until a candidate receives 60% or more of the delegate vote cast for the office

(the Convention Threshold), in which case, that candidate is certified by the Party to the

27Id. 8.0.A.

28Id. 8.0.B.

29Party Const. Art. XII.2.F.



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States election officer to appear on the general election ballot as the Partys endorsed nominee.30

40. If no candidate receives 60% or more of the delegates vote at convention as to a

single elected office, the Party nominates both candidates to run in a primary election conducted

in accordance with Utah election code.31

41. Pre-54 Utah code allows the Party to choose[] to use the primary election

process to nominate some or all of its candidates.32

42. Pre-54 Utah code provides that each registered political party that wishes to

participate in the primary election, may decide for itself whether its primary is going to be

closed or open to members of other political parties or unaffiliated persons.33

43. The Republican Partys Constitution mandates that only voters who are registered

Republicans may vote in a Republican primary election.34

44. Because the Partys convention system only chooses to use Utahs primary

election process to nominate as between the top two candidates where neither received more than

60% at convention, the current version of Utahs primary election process guarantees that the

nominee winning that primary election will have received a majority of votes cast.35

45. The purpose of these rules and procedures is to promote the principles set forth

in the State Party Platform in the nomination of Republican candidates for elected office by,

among other things, (1) limiting participation at the Partys caucuses and county and state

nominating conventions to Party members, (2) mandating neighborhood caucuses begin with a

30Id. Art. XII.2.H-.J.

31Id. Art. XII.2.I & .5.A.

32Utah Code Ann. 20A-9-403(1)(b).

33Id. 20A-9-403(2)(a).

34Party Const. Art. XII.5.B.

35Utah Code Ann. 20A-9-403(5)(a).



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prayer, a pledge, and a review of the Partys platform, (3) requiring that all candidates seeking

the Partys nomination make disclosure statements regarding the Partys platform and

substantive speeches to delegates before the delegates vote, and (4) setting the designated vote

thresholds to require either a supermajority of delegates at convention or a majority of Party

members voting where the Party rules call for the use of Utahs primary election process.36

46. After the convention and primary, the current Utah election code respects the

Partys right to certify to Utahs lieutenant governor the names of the Partys candidates and

nominees for elected office and places those candidates and nominees on the ballot with the

Partys endorsement, name and emblem to be voted upon at the regular general election.37

47. The endorsement, name and emblem that the Party uses on its certifications and

for use on the general election ballot includes the following mark (Party Mark):

36Party Const. Art. I.B.

37Utah Code Ann. 20A-6-301(1)(d)-(g), -6-301(2)(a), -6-302(1)(a), -6-303(1)(g), -6-

304(1)(g) & 20A-9-701(1)(a).



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48. As described above, the Partys candidate selection process, which the Party and

its members have determined and established for themselves, and which currently and essentially

only utilizes Utahs primary election process to allow Party members to elect by majority vote as

between two candidates for elected office where neither received more than 60% of the delegate

vote at convention, is a constitutionally protected activity.

The SB54 Movement

49. As set forth above, prior to SB54, Utah law mostly left the manner in which a



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political party selected its nominees to the partys choice of internal process. For example,

registered political parties could choose to use a primary election process to nominate some or all

of its candidates, but were not required to use that process.38

50. Beginning in approximately the spring of 2013, a handful of well-known,

influential, and self-described bipartisans began an effort to change the Utah election code for

the purpose of affecting the message and priorities expressed by the Utah Republican Party in

its chosen candidate selection process, and decreasing the level of responsiveness that Party

nominees who won election showed to the Party and its Party Platform.39

51. They made, at the time, demands to Party leadership and its State Central

Committee that the Party change the rules and procedures governing its candidate selection

process. As set forth in the Party Constitution, its State Central Committee has the authority to

act as the Partys governing and policy-making body.40

52. On or about April 12, 2013, these individuals sent Republican Party leaders, and

the State Central Committee, a letter to state that their group, which became known as Count My

Vote, registered as Utah Political Issues Committee Alliance for Good Government (collectively,

Count My Vote), would move forward with a ballot initiative to change Utahs election code

in a way that would affect the Partys power and influence, unless the Partys State Central

Committee voted, among other things, to: (1) change the Partys internal rules and procedures for

voting at its nominating conventions to eliminate multiple ballots and raise the Convention

Threshold to between 70-80%; (2) open caucus participation and allow absentee balloting; and

38Id. 20A-9-403(1).

39See, e.g., Count My Vote, Why Change Utahs Election System?, available at

http://www.countmyvoteutah.org/facts (as accessed October 16, 2014).40Party Const. Art. IV.A.



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(3) agree to implement other long-term internal or statutory solutions to provide stability and

predictability.

53. In response to these efforts, the Partys State Central Committee voted multiple

times to reject Count My Votes demands that the Party change its rules under threat of a ballot

initiative that would impose change on the Party through the Utah election code.

a. On or about March 23, 2013, a special session of the State Central Committee met to

discuss the Count My Vote demands that the Party change its internal rules and

policies in the candidate selection process, and rejected most of them.

b. On or about April 13, 2013, the Partys State Central Committee rejected a proposal

to increase the Convention Threshold as Count My Vote had demanded.

c. On or about May 18, 2013, the Partys State Central Committee rejected a similar

proposal made to increase the Convention Threshold from 60% to 2/3rds or 66% of

delegates, as Count My Vote had demanded.

54. After the State Central Committee rejected Count My Votes demands, on or

about May 18, 2013, the Partys delegates to the state convention also rejected a proposal to

increase the Convention Threshold from 60% to 2/3rds or 66% of delegates, and voted to table

indefinitely a proposal to increase the Convention Threshold from 60% to 70%.

55. After the Party refused these proposals originating from outside groups to affect

the Partys priorities and messaging through the internal rules and procedures governing its

candidate selection process, some of the same influential Utahns making the demands, it what

was described as a bipartisan group of unaffiliated, Democratic Party members, and dissatisfied

Republicans, moved forward as a Utah Political Issues Committee called Alliance For Good



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Government, or Count My Vote, with efforts to organize and fund a ballot initiative to impose

reforms on the Party through the Utah election code that the Party, its governing body, and its

delegates had rejected.

56. Count My Vote proceeded to raise large sums of money from a few, wealthy

donors who shared its views and desire to change, from the outside, the Partys priorities and

messaging by enacting reforms in the Utah election code that would force the Party to change the

internal rules and procedures governing its candidate selection process.

57.

Count My Vote registered its initiative and began its effort to obtain the

signatures required by law to have an initiative submitted to a vote of the people of Utah.

58. Significantly, Count My Vote, and its supporters, admitted and touted the

initiative as a bipartisan effort, intent on affecting the priorities and messaging of the Party, as

the dominant political party in Utah, through reforms in the Utah election code that would force

the Party to change the internal rules and procedures governing its candidate selection process,

promising thereby to take away the power of the Party and its members, reallocate the Partys

nominations to candidates with less extreme views, and cause those Party nominees who won

election to be less responsive to the Party and its Party Platform in how they governed as federal,

state and local representatives.41

59. During the 2014 legislative session, Count My Vote organizers began working

with various Utah lawmakers to enact their initiative by statute, with its intended effects.

60. From these efforts, the Party understands that organizers of Count My Vote and

Utah lawmakers struck what was characterized as a Grand Compromise to enact the Count My

41See, e.g., Count My Vote, Why Change Utahs Election System?, available at

http://www.countmyvoteutah.org/facts (as accessed October 16, 2014).



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Vote ballot initiative into law, with other reforms, in what came to be known as SB54, amending

the Utah election code.

61. The Party understands that SB54 incorporated almost the entire language,

verbatim, of Count My Votes ballot initiative, with additional reform provisions imposed by the

State regarding the manner in which a political party chooses its nominees, and it is therefore

reasonable to impute to SB54 the intent of Count My Vote to change the Utah election code for

the purpose of affecting the influence of the Party, diluting and changing the message and

priorities expressed by the Party in its chosen candidate selection process, and decreasing the

level of responsiveness that Party nominees who win election commit to the Party and its

Platform. That the State was also involved in this effort to impose these changes on the Party

through the enactment of SB54 does not make the constitutional infringements it represents any

more acceptable. SB54 is scheduled to go into effect as of January 1, 2015.

The SB54 Amendments

Misappropriating A Partys Right To Certify And Endorse Its Nominees

62. The amendments to the Utah election code enacted as SB54 begin with the State

misappropriating control from registered political parties in how their endorsements, names and

emblems are allocated to candidates for elective office and indicated on the general election

ballot.

63.

First, SB54 limits a political partys right to communicate its endorsement on the

ballot by prohibiting any endorsements, symbols, markings, or other descriptions of a

political party, or any indication that a candidate for elective office has been nominated by, or

has been endorsed by, or is in any way affiliated with a political party, except where the



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candidate is nominated by a political party in the manner approved and now mandated by the

State under Utah Code Ann. 20A-9-202(4) for presidential and vice-presidential candidates

(the Presidential Process), or under Utah Code Ann. 20A-9-403(5) for all other federal, state

or local candidates for elected office (the CMV Process).42

64. Where a registered political party complies with SB54 and selects its nominees in

accordance with the States Presidential and CMV Processes, the State shall ensure that no

other person is placed on the ballot under that partys name, title or emblem.43

65.

But where a registered political party does not comply with SB54 and refuses to

nominate its candidates in accordance with the Presidential and CMV Processes, SB54 relegates

that partys nominees on the general election ballots to a column with the other unaffiliated

candidates without a party circle.44

66. Finally, SB54 amended provisions of the Utah election code that govern the

placement and appearance of a political partys nominees on the general election ballots, ballot

sheets, and electronic ballots so that only those candidates who were nominated by a political

party in accordance with the Presidential and CMV Processes may be endorsed.45

67. In summary, where the Utah election code once respected the rights of political

parties to establish their own procedure[s] for selecting party candidates at the federal, state,

and county levels as long as they allow[] activeparticipation by party members,46

and to

42Utah Code Ann. 20A-6-301(1)(a), as amended by Chapter 17, 2014 General Session

(hereinafter as amended).43

Id. 20A-6-301(2)(a)(i) & (ii), as amended.44

Id. 20A-6-301(1)(g), as amended.45

Id. 20A-6-301(1)(d)-(g), -301(2)(a), -302(1)(a), -303(1)(g), & -304(1)(g), as amended.46Id. 20A-8-106, 20A-8-401(2)(c).



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place the names of those candidates under the parties name and emblem,47

the State is now

conditioning and limiting its prior respect for the rights of political parties to now only those

parties that select their nominees in accordance with the States mandated Presidential and CMV

Processes.48

Separating A Party From Its Candidates And Its Chosen Candidate Selection Process

68. Other amendments to the Utah election code enacted as SB54 have the effect of

weakening the role a registered political party now has in how its nominees and candidates for

elective office are selected.

69. SB54 amended the term candidates for elective office, once defined as the

person selected by a registered political party as party candidate[] to run in a regular general

election, to eliminate any reference to the political party, now defined as a person who file[s] a

declaration of candidacy under Section 20A-9-202 to run in a regular general election for a

federal office, constitutional office, multicounty office, or county office.49

70. This is significant because SB54 also amended the form for a declaration of

candidacy. Prior to SB54, the person filing a declaration of candidacy would declare his or her

intention of becoming a candidate for the office of _____, as a candidate for the _____ party,50

and would only be displayed on the ballot if that political party certified the candidate as its

nominee to the Utah lieutenant governor and county clerks, who were then obligated to ensure

that the partys endorsement appeared on the ballot, as the partys nominee to be voted upon at

47Id. 20A-6-301(2)(a).

48Id. 20A-6-301(2)(a).

49Compare id. 20A-9-101(1)(a), with id. 20A-9-101(1)(a), as amended.

Id. 20A-9-201(4)(a).



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the regular general election.51

But under the SB54 amendments, the person filing a declaration

under the amended election code now only states that he or she is seeking the nomination of the

_____ party, which is my preferred political party affiliation, and need not await the

certification or approval of any political party as long as the person was nominated under the

States Presidential or CMV Processes, which no longer give the political party any role in the

certification of its nominees to the State, and the election code authorizes Utahs lieutenant

governor to display the candidates name on the ballot as in the candidates declaration of

candidacy without any certification from the party and provides that [n]o other names may

appear on the ballot as affiliated with, endorsed by, or nominated by any other registered

political party, political party, or other political group.52

71. Under SB54, the States CMV Process for selecting a partys nominees does not

require any statement from the individual candidate seeking a partys nomination as to the

partys platform or message, or even confirmation that the candidate seeking a partys

nomination is a memberof that party, having actualaffiliation with the political party as

opposed to just a statement of preferredaffiliation.

72. SB54 amended the election code to mandate that all candidates wishing to receive

the nomination of a registered political party (i.e., appear with a partys endorsement) on the

general election ballot shall be nominated in a regular primary election pursuant to the CMV

Process.53

73. While the SB54 amendments left intact some prior language suggesting the

51Id. 20A-6-301(2)(a), -9-701(1).

52Id. 20A-9-201(1)(c), -9-201(4)(a) & -9-701, as amended.

53Id. 20A-9-403(1)(a), as amended.



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choices a political party has regarding its participation in the States primary election process, the

nature of the choice is very different as a result of those SB54 amendments.

74. Before SB54, a registered political party could choose[] to use the primary

election process to nominate some or all of its candidates,54but after SB54, the choice was more

fundamentally whether that party chooses to have the names of its candidates for elective office

featured with party affiliation on the ballotat a regular general election: no more leaving

matters to the self-determination of a registered political party, if that party wishes to realize the

very purpose in organizing as a party in the first place, it shall comply with the requirements of

this section and shall nominate its

constitution party motion to intervene in count my vote lawsuit

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