utah gop new lawsuit

8/20/2019 Utah GOP New Lawsuit

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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]

Christ Troupis (applying for admission pro hac vice)

Troupis Law Office, P.A.801 East State Street, Suite 50

Eagle, Idaho 83616Telephone: (208) 938-5584

Email: [email protected] Attorneys for Plaintiff Utah Republican Party

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

UTAH REPUBLICAN PARTY,

Plaintiff,

v.

GARY R. HERBERT, in his OfficialCapacity as Governor of Utah, and

SPENCER J. COX, in his Official Capacityas Lieutenant Governor of Utah,

Defendants.

COMPLAINT

Case No. _____________

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

PARTIES AND JURISDICTION

1. 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.

2. 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

Case 2:16-cv-00038-DN Document 2 Filed 01/15/16 of 30



enforcement of the law titled Senate Bill 54 (“SB54”), enacted by the Utah Legislature and

signed by Governor Gary R. Herbert (collectively, with the Utah Legislature, the “State”) in

2014, amending the Utah election code.1 In prior litigation regarding SB54, titled Utah

Republican Party v. Herbert, et al., Case No. 2:14-cv-00876 (D. Utah), Herbert asserted certain

legal and factual positions – made in statements to the court by State counsel representing

Herbert, and in sworn testimony made by the State’s representative, Utah Director of Elections

Mark Thomas – that the Court and Party relied on in resolving that matter.

3.

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

the chief election officer of Utah,2 empowered with general supervisory authority over all

political parties and elections, and responsible for the enforcement and implementation of SB54,

among other things. In prior litigation regarding SB54, titled Utah Republican Party v. Herbert,

et al., Case No. 2:14-cv-00876 (D. Utah), Cox asserted certain legal and factual positions – made

in statements to the court by State counsel representing Herbert, and in sworn testimony made by

Cox’s representative, Utah Director of Elections Mark Thomas – that the Court and Party relied

on in resolving that matter.

4. Defendants are responsible for the administration of Utah’s election process, including

overseeing all voter registration activities, the activities of political parties, and coordinating

“with local, state, and federal officials to ensure compliance with state and federal election

laws,” including SB54.3

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

1 Utah Code Ann. § 67-1-1(1).

2 Utah Code Ann. § 67-1a-2(2)(a).

3 Utah Code Ann. § 20A-2-300.6(2)(b).




States Constitution, 42 U.S.C. § 1983, and other applicable law, seeking declaratory and

injunctive relief.

6. The Court has federal question jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1343.

Declaratory and injunctive relief are authorized by 28 U.S.C. §§ 2201 and 2202.

7. Venue is proper pursuant to 28 U.S.C. § 1391.

GENERAL ALLEGATIONS

8. On December 1, 2014, the Party filed the matter titled Utah Republican Party v. Herbert,

et al., Case No. 2:14-cv-00876 (D. Utah) (the “First Lawsuit”), with this court, the Honorable

David Nuffer presiding.

9. In the First Lawsuit, among other things, the Party alleged that SB54 infringed and

burdened the Party’s constitutional rights, especially the right of the Party to determine for itself

how its nominee standard bearers are selected, and to ensure that those nominees represent its

political platform. The allegations set forth in the First Lawsuit are attached and incorporated

herein by reference.4

10. In the First Lawsuit, the Party prayed for a declaratory judgment that SB54 was

unconstitutional, and for injunctive relief, to enjoin the enforcement and implementation of

SB54, and prevent the State from infringing on the Party’s rights.

11. On or about January 5, 2015, the Party filed an Amended Motion for a Preliminary

Injunction and asked the district court to stay enforcement and/or implementation of SB54

during the pendency of the First Lawsuit.

12. In response to the allegations raised by the Party in the First Lawsuit and Amended

4 See Complaint, First Lawsuit, Doc. 2, filed December 1, 2014, attached hereto as Exhibit 1.




Motion for a Preliminary Injunction, the State amended the Utah election code by enacting and

signing into law Senate Bill 207 (“SB207”), addressing one of the claims raised by the Party in

its complaint – that SB54 modified then-existing law to allow the State to impose a candidate on

a registered political party without ensuring that candidate was even a member of the registered

political party.5

13. In response to the allegations raised by the Party in the First Lawsuit and Amended

Motion for a Preliminary Injunction, the State’s representative, Utah Director of Elections Mark

Thomas, gave sworn testimony disputing allegations asserted by the Party that SB54 imposed a

burden on its rights, testifying that the State has little, if any, interest or authority to review the

Party’s candidate-selection rules or to dictate to the Party how it should select its candidates.6

14. Based on the testimony of the State’s representative and the passage of SB207,7 on April

10, 2015, the court in the First Lawsuit heard and denied the Party’s Amended Motion for a

Preliminary Injunction on ripeness grounds, explaining, in part, that “because the party has not

elected the [Qualified Political Party, or] QPP route … we’re not ripe for an as applied

challenge.”8

5 See id. ¶¶ 68-76, 100, 110; compare Notice of SB207, First Lawsuit, Doc. 66, filed March 31,

2015.6 See Deposition of Utah Director of Elections Mark Thomas, First Lawsuit, Doc. 69-3, filed

April 1, 2015 (hereinafter “Thomas Tr.”), at 99:11-103:21, 103:17-104:19, 111:7-112:10,

119:6-124:7, 131:14-17, 132:9-133:24; 135:7-136:5, 145:18-147:8; 148:24-149:23; and 151:21-152:25.7 See Transcript of Hearing, First Lawsuit, Doc. 107, held April 10, 2015 (hereinafter “4/10/2015

Hrg.”) at 13:10-4, 124:7-12; Court Order, First Lawsuit, Doc. 170, filed September 24, 2015

(hereinafter “Prelim. Inj. Order”), at 5-8, 13, 19-20. 8 First Lawsuit, 4/10/2015 Hrg. at 122:22-25. In this, the court concluded that the other “route”

of a “Registered Political Party” (or “RPP”) under SB54 would not impose an “unconstitutional burden and outcome” on the Party, but it also rejected the State’s argument that the QPP route

was constitutionally permissible because SB54 gave the Party a “choice”: “[T]he difference is …




15. Based on the positions that the State had taken in the First Lawsuit, the court rejected the

Party’s concerns that its “nominee may not necessarily be a party member or committed to the

party platform,” suggesting that the Party should adjust its “membership requirements” to

resolve them.9 In particular, the court summarized its understandings of the State’s position to

assure the Party that “[t]he State has nothing to say about who’s the member of a party, at least

under this statute, except to say it’s determined in accordance with party rules.”10

16. In its formal order denying the Party’s Amended Motion for a Preliminary Injunction, the

court rejected the Party’s claims that SB54 restricted its ability to endorse the candidates of its

choice and to regulate the Party’s internal affairs free from State influence.11 In reaching its

conclusions, the court held “[s]ignificantly, under SB54, the State does not dictate who is

allowed to be a member of a political party,” that “state law allows all political parties to define

membership in accordance with party rules,” and that “SB207 eliminate[d] the Party’s concern

that its nominees may not be members of the Republican Party” because “a candidate may not

file a declaration of candidacy for a political party of which the candidate is not a member,

except to the extent that the political party permits otherwise in the political party’s bylaws.”12

17. Significantly, the order’s analysis invited the Party to file objections to a candidate’s

[the QPP route] pushes the unaffiliated voter in. The voter under past practice would make thechoice to opt in. And it is the State’s pushing or forcing which is questionable constitutionally.

No cases ever upheld in my view this sort of provision when presented directly to the Court. Butat this stage there are alternative paths so a facial challenge, again not pled for, cannot succeed,

and an as applied challenge is not ripe. So there may be further development of the record, but atthis stage there will be no injunction against the enforcement of Senate Bill 54.” Id . at 126:14-

127:8.9 First Lawsuit, 4/10/2015 Hrg. at 124:7-12.

10 Id .

11 First Lawsuit, Prelim. Inj. Order at 19.

12 Id . at 19-20.




declaration of candidacy under Utah Code § 20A-9-202(5) as one way to ensure that candidates

comply with its rules.13

18. Following the April 10, 2015, hearing, the Party acted in reliance on the State’s position,

as stated by its counsel and representatives in the First Lawsuit and summarized by the court, and

amended its Utah Republican Party Constitution and Utah Republican Party Bylaws to address

the issues raised by SB54 and to preserve its associational rights to control who will be selected

as the Party’s nominees for elected office, being identified with the Party’s official mark and

endorsement, and how those nominees will be selected. In particular:

a. the Party amended Article I, § C of its Constitution to restrict membership to those

who comply with its internal rules: “Party membership 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 ....”;14

b. the Party amended its Bylaws to require that any candidate choosing to run for its

nomination “shall sign and submit a certification that they will comply with the rules

and processes set forth in the Utah Republican Party Constitution and these Bylaws

….”;15

and

c. the Party amended the specific provisions of the caucus/convention candidate

selection procedure set forth in its Constitution to provide that any “candidate for an

office that receives 60% or more of the votes cast at any point in the balloting process

at the state nominating conventions shall proceed to the general election,” nominating

13 Id. at 20 n.79.

14 2015 Utah Republican Party Constitution (hereinafter “Const.”) Art. I, § C.

15 2015 Utah Republican Party Bylaws (“Bylaws”), § 8.0(A).




the top two candidates to run in a primary election only if neither receives 60% or

more of the delegates’ vote at the convention.16

19. On August 18, 2015, the Party delivered a letter to the office of Lieutenant Governor to

designate itself a QPP in the 2016 election cycle, certifying “its intent to nominate candidates in

2016 in accordance with its internal rules and procedures and Utah Code Ann. § 20A-9-406 …

without prejudice to the positions the party has asserted in the matter Utah Republican Party v.

Herbert, et al., Case No. 2:14-cv-876 (D. Utah), challenging the constitutionality of recent

amendments to the Utah Election Code.”

20. In response to the State’s motion for summary judgment in the First Lawsuit, the Party

requested summary judgment in its favor under Rule 56(f) of the Federal Rules of Civil

Procedure, and at a hearing held October 27, 2015, on pending motions of the State, the Party,

and other parties, the court indicated that it was inclined to grant partial summary judgment to

the Party, striking at least one provision of SB54 as unconstitutional, § 20A-9-101(12)(a), after

giving the State a reasonable opportunity to respond.17

21. At the October 27, 2015, hearing, the court inquired into Defendants’ position regarding

another provision of SB54, § 20A-9-101(12)(d), which only required that members of a QPP,

such as the Party, be permitted “to seek nomination by either or both of the following methods,”

referring to the convention method and signature-gathering methods, and asked Defendants’

counsel to “tell me what that means.”18

16 Const. Art. XII.2.I & 5.A.

17 See Summary Judgment Ruling, First Lawsuit, Doc. 207, filed November 3, 2015 (hereinafter

“Summary Judgment Ruling”), at 2, 37-38; Opposition to Motion for Summary Judgment,First Lawsuit, Doc. 176, filed October 9, 2015, at 3.18 See Transcript of Hearing, First Lawsuit, Doc. 202, held October 27, 2015 (hereinafter




22. Following the Defendants’ counsel response, the court clarified: “The qualified political

party – let me go back to that – under 12(d), has to permit the member to do one or both of the

petition method or nomination through the convention method. So if they only permit

nomination by convention, they would be a QPP under 12(d).”19 To which Defendants’ counsel

answered: “Yes,” later confirming: “You can be a QPP by providing either of those methods or

both.”20

23. After this exchange at the October 27 hearing, the court indicated its intent to strike §

101(12)(d) as unconstitutional, and asked the parties what, if any, issues remained in the case

ripe for adjudication.21

24. In reliance on the statements made by Defendants’ counsel, and other developments since

the First Lawsuit was filed, the Party answered that there were no remaining issues in the case.22

25. On November 3, 2015, the court issued its order striking § 20A-9-101(12)(a) as

unconstitutional, and, based on the statements of the parties at the October 27 hearing, directed

the case be closed.23

26. On November 23, 2015, the court entered a Declaratory Judgment and Injunction in the

First Lawsuit, declaring that Utah Code § 20A-9-101(12)(a) is unconstitutional and enjoining its

“10/27/2015 Hrg.”), at 34:7-9.19 Id . at 35:17-21.20 Id . at 35:23, 36:8-10. Defendants’ counsel stated that he viewed § 101(d) as conflicting withanother provision from SB54, § 20A-9-406(3), which he argued, “reaffirm[ed] the right of the

individual,”20

explaining how he anticipated that would “be the next lawsuit.” Id. at 35:4-15,35:24-36:5.21

Id . at 90:9-12.22

Id . at 90:17-19; First Lawsuit, Summary Judgment Ruling at 37.23 First Lawsuit, Summary Judgment Ruling at 29, 33, 38-39.




enforcement as applied to the Party.24

27. The court left the remainder of SB54 intact, finding that the unconstitutional provision

was severable, and noting that “Utah Code § 20A-9-406(1) replaces the function of Utah Code §

20A-9-101(12)(a), as applied to the Utah Republican Party,” referring to the provision of the law

that allows a QPP to determine for itself and certify to the Utah Lieutenant Governor who may

vote for the QPP’s candidates.25

28. By leaving the remainder of SB54 intact, and having § 9-406(1) replace the function of §

9-101(12)(a), the court also restricted those persons who may sign nominating petitions for

candidates seeking the nomination of a QPP by way of signature-gathering to those voters who

are permitted by the QPP to vote in its primary election.26

29. Accordingly, by its plain language, and as confirmed by Defendants in the First Lawsuit,

SB54 only requires that a QPP permit its members to seek nomination “by either or both” of two

methods: convention or signature-gathering.27

30. Relying on the plain language of SB54, as well as statements made by or on behalf of

Defendants in the First Lawsuit, the Party amended its membership requirements and the

candidate-selection rules and procedures set forth in its Constitution and Bylaws, to restrict its

candidate-selection procedures to the convention method.

31. The Party formally declared this position to the Lieutenant Governor’s office by letter

dated November 10, 2015.28 In response, by letter dated November 19, 2015, the Lieutenant

24 Declaratory Judgment and Injunction, First Lawsuit, Doc. 215, filed November 23, 2015.

25 Id . at ¶ 3.

26 Compare Utah Code Ann. § 20A-9-408(8) and § 20A-9-406(1).

27 Utah Code Ann. § 20A-9-101(12)(b).

28 See Letter from James Evans, Chairman of the Utah Republican Party, to Lt. Gov. Spencer J.




Governor stated his understanding that there was “a conflict between the Utah Republican

Party’s reading of two sections of the Utah Code enacted in 2014 by SB54 and the reading by my

office of those same sections, namely Utah Code Sections 20A-9-406(3) and 20A-9-

101(12)(d).”29

32. The Lieutenant Governor stated his intent to overrule and impose his reading of those

provisions enacted by SB54 to force the Party to accept the nomination of candidates by way of

the signature-gathering method: “I must, and intend to, allow candidates, in a qualified political

party, the opportunity to choose between the convention system, gathering signatures or both.

Any objection by a qualified political party to reject candidates who gather signatures will not be

sustained by my office.”30

That statement of intent is contrary to the legal and factual positions

Defendants took in the First Lawsuit – as set forth in statements made by State counsel

representing Defendants and the sworn testimony of their representative – that the Court and

Party relied on in resolving that matter.

33. The Lieutenant Governor further extended his intent – that is now contrary to the legal

and factual positions Defendants took in the First Lawsuit and which the Court and Party relied

on in resolving that matter – in a in a letter that his office prepared, dated November 20, 2015,

responding to inquiries made by Republican State Senator Todd Weiler.31

Cox, dated November 19, 2015, available at http://elections.utah.gov/Media/Default/2016%20Election/UTGOP%20Lt%20Gov%20Position%20Letter%20Preliminary%2011.10.201

5.pdf (last checked at the time of filing).29

See Letter from Lt. Gov. Spencer J. Cox to James Evans, Chairman of the Utah Republican

Party, dated November 19, 2015 (hereinafter “11/19/2015 Cox Letter”), at 1, available athttp://elections.utah.gov/Media/Default/2016%20Election/James%20Evans%20letter%2011.19.2

015.pdf (last checked at the time of filing).30

Id . at 3.31 See Letter from Utah Director of Elections Mark Thomas, Lieutenant Governor’s Office, to




34. In that letter, the Lieutenant Governor’s office was responding to Weiler’s inquiries

based on his stated intent to seek the Party’s nomination in the 2016 election cycle by signature-

gathering.

35. Weiler asked the Lieutenant Governor’s office if he, as a Republican Party member, has

the choice under current law to seek the Party’s nomination by signature-gathering, to which the

Lieutenant Governor’s office responded: “Yes…. [T]he individual or member [of the Party] has

the ability to choose which method they will seek the nomination under,” regardless of what the

Party’s rules or procedures say in that respect.32

36. By taking that position, which is contrary to the legal and factual positions Defendants

took in the First Lawsuit – as set forth in statements made by State counsel representing

Defendants and the sworn testimony of their representative – and that the Court and Party relied

on in resolving that matter, Defendants are imposing SB54 in a way that is both contrary to the

plain language of § 9-101(12)(b) and (d) and unconstitutionally burdens the Party’s rights.

37. By taking that position, the Lieutenant Governor’s office is permitting a member seeking

the Party’s nomination to violate the its rules and procedures, and to act contrary to the

member’s certification that he or she will comply with the Party’s rules and procedures in

seeking the nomination.

38. Weiler asked the Lieutenant Governor’s office, “what if my party says I can’t collect

signatures?” to which the Lieutenant Governor’s office responded that it would overrule any

Utah State Senator Todd Weiler, dated November 20, 2015 (hereinafter “Weiler Letter”),attached hereto as Exhibit 2.32 Id . at 1.




objection the Party might make to “candidates who gather signatures.”33










41. Weiler asked if the Lieutenant Governor’s office would certify him for the Party’s

primary even if it was contrary to the Party’s rules and procedures (and his certification to

comply with them), to which the Lieutenant Governor’s office responded, stating that the Party

“must allow candidates to collect signatures” and that it “will not be in compliance [with the law]

if it does not allow a candidate to collect signatures.”34







33 Id . at 2.

34 Id . at 3.







44. In response to further questions, the Lieutenant Governor’s office indicated that it was

considering disqualifying the Party as a QPP (or otherwise) if it did not allow members to seek

its nomination by signature-gathering, in a manner that violated Party rules, and the candidate’s

own certification required by those rules.35

45.

By taking that position, which is contrary to the legal and factual positions Defendants









47. On December 3, 2015, the Party wrote a letter to the Lieutenant Governor asking him to

reconsider his position, but to date the Lieutenant Governor has not responded or indicated that

he intends to reconsider.

48. Accordingly, based on the Lieutenant Governor’s change in position from that asserted in

the First Lawsuit, and how the State intends to enforce SB54 against the Party, including a

35 Id . at 3.




possible disqualification as a QPP or otherwise as a Utah registered political party, the Party’s

rights are being, and will be, unconstitutional burdened by the unstricken provisions of SB54.

49. As set forth above, the Lieutenant Governor is now threatening to disqualify the Party as

a QPP if it does not allow candidates to seek its nomination pursuant to SB54’s signature-

gathering provisions.

50. As Defendants have stated their intent to enforce SB54 against the Party, it will burden

the rights of the Party and its members in at least the following ways:

Judicial Estoppel

51. First, the State’s change in position from those taken by the Defendants, and their

representatives, in the First Lawsuit burdens the Party’s rights in how it violates the principles of

judicial estoppel.

52. As the Supreme Court has held: “Where a party assumes a certain position in a legal

proceeding, and succeeds in maintaining that position, he may not thereafter, simply because his

interests have changed, assume a contrary position, especially if it be to the prejudice of the party

who has acquiesced in the position formerly taken by him.”36

53. The actions of Defendants contrary to the positions they took in the First Lawsuit, that the

Party relied on, and that the court relied on in, among other things, rejecting the Party’s claims

that SB54 restricted its ability to endorse the candidates of its choice and to regulate the Party’s

internal affairs free from State influence.37

Unconstitutional Burden on the Party’s Constitutional Rights

54. Second, the State’s interpretation of SB54 to require that a QPP permit members to seek

36 New Hampshire v. Maine, 532 U.S. 742, 749 (2001).

37 First Lawsuit, Prelim. Inj. Order at 19-20.




its nomination by “both” methods of convention and signature-gathering burdens the rights of

the Party and its members in a way that is contrary to the plain language of SB54, which only

requires that the Party permit members to seek its nomination by “either or both” of those

methods. And Defendants are seeking impermissibly to impose its preferred candidate-selection

process on the Party in place of the rules and procedures that the Party has determined for itself

will produce nominees that best reflect the Party’s platform and views.

55. Contrary to the assurances that the court in the First Lawsuit gave the Party in rejecting

some of its claims, Defendants are now dictating to the Party who is, and is not, allowed to be a

member, how the Party defines membership, and that the Party has no say in whether an

individual may seek the Party’s nomination in a manner that is contrary to its rules, and contrary

to the certification that the individual must make in choosing to pursue the Party’s nomination in

the first place.38

56. 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 Party’s platform and message, the

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

best represent the Party’s political platform, the right to determine for itself the candidate

selection process that will produce the nominee who best represents the Party’s political

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

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

38 Compare id . at 19-20.




Republican Party, and by the Party itself.

57. By now taking an interpretation of SB54 that is contrary to the positions taken by the

State in the First Lawsuit, and contrary to the assurances of the court in the First Lawsuit, the

State is seeking to impose on the Party a system of candidate-selection rules and internal

processes that is different from the rules and processes the Party has chosen for itself to ensure

that its nominees for elected office are members in good standing who represent its political

platform. In so doing, the State is violating the rights of the Party and its members to free

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

and its authority over its endorsement, name, and emblems.

Unconstitutional Signature-Gathering Requirements

58. There is at least one final way in which Defendants’ actions burdens the rights of the

Party and its members, and it relates to the threshold signature-gathering requirements set forth

in SB54.

59. As stated above, despite assurances that the Party could limit candidates to the

convention method, less than a month after the October 27 hearing, Defendants reversed course,

asserting in letters dated November 19 and 20 that the Lieutenant Governor’s office will (1)

overrule any objection to candidates who seek nomination by signature-gathering in violation of

the Party’s rules, and (2) potentially disqualify the Party as a QPP if it does not allow members

to seek nomination by signature-gathering, in violation of its rules and the individual’s own

certification to the Party, with impunity.

60. Signature gathering for a QPP under SB54 is governed by Utah Code § 20A-9-408,

which requires that candidates seeking the Party’s nomination for elected office in any of the




following political subdivisions obtain signatures in the following amounts:

a. for a statewide race, 28,000 signatures of registered voters permitted by the QPP

to vote in a primary election;

b. for a congressional district race, 7,000 signatures of registered voters permitted by

the QPP to vote in a primary election;

c. for a state Senate district race, 2,000 signatures of registered voters permitted by

the QPP to vote in a primary election;

d.

for a state House district race, 1,000 signatures of registered voters permitted by

the QPP to vote in a primary election; and

e. for a county office race, signatures of 3% of registered voters permitted by the

QPP to vote in a primary election.39

61. According to the Lieutenant Governor’s office, there are currently approximately 586,702

registered Republican voters in the State of Utah.

62. By demanding that the Party must allow candidates to seek its nomination by signature-

gathering under § 9-408, under the threat of disqualification by the Lieutenant Governor, SB54

imposes threshold requirements on candidates seeking the Party’s nomination by signature-

gathering at the state, county, or local levels that exceed the thresholds established by the

Supreme Court.

63.

The United States Supreme Court has only upheld signature-gathering requirements that

were 5% of the designated population, suggesting that anything more than 5% would impose an

unconstitutional burden on the rights of the party and its members under the First and Fourteenth

39 Utah Code Ann. § 20A-9-408.




Amendments of the U.S. Constitution, and other federal courts have applied these standards to

strike down signature requirements over 5%.40

The Party is challenging the entirety of these

signature requirements as unconstitutional.

64. In particular, under SB54, and because the Party has certified as a QPP, members seeking

the Party’s nomination for elected office in at least two congressional districts, Districts 2 and 4

which according to the Lieutenant Governor’s records have 139,593 and 123,542 registered

Republican Party members, respectively, face signature-gathering requirements under Utah Code

Ann. § 20A-9-408 that exceed the 5% levels that the Supreme Court has indicated are

constitutionally permissible, imposing a severe and unconstitutional burden on the Party and its

members.

65. The unconstitutional burden of the signature-gathering requirements that Utah Code Ann.

§ 20A-9-408 imposes on the Party and its members are even more onerous, and more blatantly

unconstitutional, as applied to members seeking the Party’s nomination for elected office in the

state legislature.

66. Under SB54, and because the Party has certified as a QPP, members seeking the Party’s

nomination for elected office in one of the State’s twenty-nine State Senate districts, which

according to the Lieutenant Governor’s records have registered Republican Party members as set

forth below, face signature-gathering requirements under Utah Code Ann. § 20A-9-408 that

range between approximately 6% to 31% of all registered Republicans in their respective

districts, exceeding the levels that the Supreme Court has indicated are constitutionally

40 See, e.g., Jenness v. Fortson, 403 U.S. 431, 438 (1971); Storer v. Brown, 415 U.S. 724, 739

(1974); Lee v. Keith, 463 F.3d 763, 772 (7th Cir. 2006).




permissible and imposing a severe and unconstitutional burden on the Party and its members.

STATE SENATE

District # Registered Party Members Signatures Required Percentage

1 6490 2000 30.82%

2 8216 2000 24.34%

3 8397 2000 23.82%

4 18901 2000 10.58%

5 9596 2000 20.84%

6 15624 2000 12.80%

7 22474 2000 8.90%

8 16128 2000 12.40%

9 21523 2000 9.29%

10 24121 2000 8.29%

11 23305 2000 8.58%

12 12025 2000 16.63%

13 26936 2000 7.43%

14 32212 2000 6.21%

15 24186 2000 8.27%

16 21325 2000 9.38%

17 24362 2000 8.21%

18 16024 2000 12.48%

19 18147 2000 11.02%

20 18503 2000 10.81%




21 19585 2000 10.21%

22 26404 2000 7.57%

23 24122 2000 8.29%

24 26473 2000 7.55%

25 22596 2000 8.85%

26 24255 2000 8.25%

27 20232 2000 9.89%

28 26362 2000 7.59%

29 28178 2000 7.10%

TOTAL 586702

67.

Under SB54, and because the Party has certified as a QPP, members seeking the Party’s

nomination for elected office in one of the State’s seventy-five State House districts, which

according to the Lieutenant Governor’s records have registered Republican Party members as set

forth below, face signature-gathering requirements under Utah Code Ann. § 20A-9-408 that

range between approximately 7% to 57% of all registered Republicans in their respective

districts, exceeding the levels that the Supreme Court has indicated are constitutionally

permissible and imposing a severe and unconstitutional burden on the Party and its members. In

fact, in those districts where the requirements exceed 50% levels, the requirements of SB54 limit

the number of candidates to 1 who can possibly qualify for the Party’s primary, because

members may only sign one petition per elected office.

STATE HOUSE OF REPRESENTATIVES




District # Registered Party Members Signatures Required Percentage

1 10061 1000 9.94%

2 9835 1000 10.17%

3 10008 1000 9.99%

4 6119 1000 16.34%

5 10137 1000 9.86%

6 10078 1000 9.92%

7 8383 1000 11.93%

8 6102 1000 16.39%

9 4531 1000 22.07%

10 5003 1000 19.99%

11 7343 1000 13.62%

12 7253 1000 13.79%

13 6526 1000 15.32%

14 5932 1000 16.86%

15 10004 1000 10.00%

16 7064 1000 14.16%

17 10423 1000 9.59%

18 12227 1000 8.18%

19 11075 1000 9.03%

20 8691 1000 11.51%

21 5645 1000 17.71%

22 3868 1000 25.85%




23 2086 1000 47.94%

24 3648 1000 27.41%

25 2294 1000 43.59%

26 1748 1000 57.21%

27 14004 1000 7.14%

28 5678 1000 17.61%

29 10210 1000 9.79%

30 4177 1000 23.94%

31 2805 1000 35.65%

32 8769 1000 11.40%

33 2897 1000 34.52%

34 4737 1000 21.11%

35 2684 1000 37.26%

36 8442 1000 11.85%

37 7246 1000 13.80%

38 3475 1000 28.78%

39 5163 1000 19.37%

40 4641 1000 21.55%

41 9940 1000 10.06%

42 7284 1000 13.73%

43 5861 1000 17.06%

44 5600 1000 17.86%

45 6599 1000 15.15%




46 7587 1000 13.18%

47 5786 1000 17.28%

48 12104 1000 8.26%

49 9222 1000 10.84%

50 11799 1000 8.48%

51 8100 1000 12.35%

52 9222 1000 10.84%

53 9964 1000 10.04%

54 8898 1000 11.24%

55 10089 1000 9.91%

56 10763 1000 9.29%

57 10567 1000 9.46%

58 9255 1000 10.80%

59 9732 1000 10.28%

60 10657 1000 9.38%

61 8799 1000 11.36%

62 10619 1000 9.42%

63 5359 1000 18.66%

64 6957 1000 14.37%

65 10745 1000 9.31%

66 9451 1000 10.58%

67 8615 1000 11.61%

68 8695 1000 11.50%




69 6182 1000 16.18%

70 9169 1000 10.91%

71 10513 1000 9.51%

72 9621 1000 10.39%

73 9764 1000 10.24%

74 12138 1000 8.24%

75 10034 1000 9.97%

TOTAL 586702

68. These requirements exceed any signature-gathering requirement ever allowed by the

United States Supreme Court, and thus unconstitutionally burden the rights of the Party and its

members.

69. By imposing such high levels of signature-gathering requirements on candidates seeking

the Party’s nomination, under the interpretation now threatened by the Lieutenant Governor,

SB54 effectively seeks to force the Party to allow unaffiliated voters to sign petitions for

candidates seeking its nomination signature-gathering, which, in turn, would force the Party to

allow those unaffiliated voters to participate in the Party’s primary. That is exactly what the court

ruled the State could not do in the First Lawsuit.

FIRST CAUSE OF ACTION

For Declaratory Relief Establishing The Unconstitutionality of SB54 For Violating The

Party’s Rights

70. Plaintiff incorporates and realleges the preceding paragraphs as though set forth at length

in this cause of action.




71. This claim for relief arises under the First and Fourteenth Amendments to the United

States Constitution, and 42 U.S.C. § 1983.

72. An actual controversy exists between the Party and the State of Utah with regard to the

exercise of constitutionally protected First Amendment associational rights.

73. The Party is entitled to a declaratory judgment establishing the unconstitutionality of the

SB54 set forth above as applied to the manner in which

a. the State has taken a different position from that taken in the First Lawsuit, that

the Party relied on in terminating prior litigation;

b. the State has taken away and misappropriated the Party’s right to certify and

endorse its nominees for elected office;

c. the State has taken away and misappropriated the Party’s right to communicate its

endorsement on the general election ballot and to control the use of its name and

emblem on the ballot;

d. the State has taken away and misappropriated the Party’s right to determine for

itself the candidate selection process that will produce a nominee who best

represents the Party’s political platform;

e. burdened the Party’s associational rights by mandating changes to the Party’s

internal rules and procedures, at the threat of depriving the Party of its rights if it

refuses to comply, that disadvantage the Party, and that the Party has rejected and

that conflict with the rules the Party has determined for itself, as set forth in its

Constitution and Bylaws, will produce a nominee who best represents the Party’s

political platform;




f. burdened the Party’s associational rights, and the rights of disassociation, by

imposing upon the Party a nominee who may not necessarily be a Party member

and without guaranteeing that nominee has been selected by a majority of Party

members participating in the primary election;

g. burdened the Party’s associational rights and rights to free speech, by taking away

the Party’s right to have its nominees commit themselves to the Party Platform

“as the standard by which my performance as a candidate and as an officeholder

should be evaluated,” and replacing it with a process that requires only that

candidates gather signatures;

h. burdened the Party’s associational rights, and the rights of disassociation, by

taking away the Party’s convention system as its preferred way of selecting

nominees and allowing a party to designate candidates in the primary election by

convention only if it agrees to open that primary election, that the State now

mandates, to persons unaffiliated with the Party;

i. burdened the Party’s associational rights and the rights of disassociation, by

imposing on candidates seeking the Party’s nomination onerous signature

gathering requirements beyond those ever allowed by the United States Supreme

Court, and thus unconstitutionally burdens the Party’s rights;

j.

burdened the rights of the Party and its members by imposing on them signature-

gathering requirements beyond those ever allowed by law; and

k. otherwise burdening the Party’s rights of association, or depriving it of its rights

of disassociation, free speech and due process as set forth above.




74. SB54 authorizes and directs Defendants and other election officials to infringe on the

Party’s rights as set forth above without a compelling state interest.

75. Pursuant to 42 U.S.C. § 1983 et. seq., the Party is entitled to a declaratory judgment

declaring these rights, and to an award of reasonable attorneys’ fees and costs in this action.

SECOND CAUSE OF ACTION

For Injunctive Relief To Prevent The Deprivation Of Plaintiff’s Constitutional Rights

76. Plaintiff incorporates and realleges the preceding paragraphs as though set forth at length

in this cause of action.

77. Enforcement of SB54 constitutes an imminent and ongoing threat by the State of Utah,

acting by and through Defendants, to deprive the Party and its members of their civil rights and

constitutionally protected rights.

78. The Party will suffer irreparable injury the State is allowed to take a different position

from that taken in the First Lawsuit, which the Party relied on in terminating prior litigation.

79. The Party will suffer irreparable injury its nominees are selected in the manner now

dictated by the election code, as amended by SB54, where the Party and its members are

deprived of the right

a. to certify and endorse its nominees for elected office;

b. to communicate its endorsement on the general election ballot and to control the

use of its name and emblem on the ballot;

c. to determine for itself the candidate selection process that will produce a nominee

who best represents the Party’s political platform;

d. to determine the internal rules and procedures that govern that designated




candidate selection process, free of the State’s threat to deprive the Party of its

rights if it refuses to comply with rules that disadvantage the Party and that

conflict with the Party’s chosen rules;

e. to require that Party’s nominee is a member selected by either a supermajority of

Party delegates or a majority of Party members participating in the primary

election;

f. to require that its nominees commit themselves to the Party Platform “as the

standard by which [their] performance as a candidate and as an officeholder

should be evaluated”;

g. to require that, in order to keep aspects of the Party’s convention system, the Party

open up its primary election, that the State now mandates, to persons unaffiliated

with the Party;

h. to require that candidates seeking the Party’s nomination gather signatures beyond

requirements ever allowed by the United States Supreme Court, thus

unconstitutionally burdening the Party’s rights; and

i. to exercise its rights of association, free speech, and disassociation as set forth

above.

80. SB54 deprives the Party, and its members and supporters, of the right to due process of

law as guaranteed by the Fourteenth Amendment to the United States Constitution, without a

compelling state interest.

81. Pursuant to 28 U.S.C. § 2201, the Court should enter a declaratory judgment stating that

SB54 violates the Party’s rights and 42 U.S.C. § 1983, and should enter a permanent injunction




enjoining enforcement or application of SB54 to the Party.

PRAYER FOR RELIEF

WHEREFORE, Plaintiff prays the Court for an entry of judgment in its favor and against

Defendants as follows:

1. A declaratory judgment, pursuant to 28 U.S.C. § 2201, declaring that SB54

violates the Party’s rights under the First and Fourteenth Amendments to the United States

Constitution, and the Party’s rights to control and direct the use of its name, title, emblems, and

endorsements;

2. A permanent injunction enjoining enforcement and implementation of SB54;

3. A judgment awarding Plaintiff its damages and costs of suit, including reasonable

attorneys’ fees under 42 U.S.C. § 1988; and

4. Such other and further relief to which Plaintiff may be entitled.

Respectfully submitted this 15th day of January, 2015.

/s/ Marcus R. MumfordAttorney for Plaintiff




VERIFICATION

I, James Evans, Chairman of the Utah Republican Party, have read the foregoing

Complaint and declare under penalty of perjury that is true and correct, and true and correct to

the best of my knowledge, information and belief.

__________________________________James Evans




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

UTAH REPUBLICAN PARTY,

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 Party’s platform and message, the

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

best represent the Party’s political platform, the right to determine for itself the candidate

selection process that will produce the nominee who best represents the Party’s 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 2:16-cv-00038-DN Document 2-1 Filed 01/15/16 Page 1 of 42



2

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 Party’s 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 association’s right to exclude more important than in the process of selecting its nominee. That process often determines the party’s

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

ambassador to the general electorate in winning it over to the party’s 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 party’sideologies and preferences.” The moment of choosing the party’s 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.

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

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

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




3

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 Party’s 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 Party’s 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 Party’s 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

Party’s political platform, (2) supplanting the Party’s judgment with the judgment of the State as

to the Party’s chosen candidate selection process according to what is most likely to produce

nominees who best represent the Party’s 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

2 See Count My Vote, Why Change Utah’s Election System?, available at

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

Vote”).3 Compare Count My Vote, with Utah Republican Party Bylaws (hereinafter “Bylaws”) § 8.0.A

(v. 2013 Official).




4

appear on the general election ballot as the Party’s nominees for elected office, without

commensurate consideration in how it has not ensured that the Party’s 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 State’s mandated candidate selection process.

9. SB54 violates the Party’s 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 Utah’s election process,

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

4 Utah Code Ann. § 67-1-1(1).




5

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, Utah’s 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

5 Id . § 20A-2-300.6(2)(b)

6 Id . § 20A-1-201.




6

organization name.”7

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

in the State’s general elections shall designate, where appropriate, the endorsements of political

parties nominating candidates, including by way of a political party’s 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

candidate’s 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 “a procedure for selecting party candidates at the federal, state, and

county levels that allows active participation by party members,”11

but it otherwise leaves it to

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

party’s 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

7 Id. § 20A-8-102(2).

" !"# # 20A-6-301. 9 Id . §§ 20A-6-301(1)(d)-(g) & -301(2)(a), -302(1)(a), -303(1)(g), & -304(1)(g).

10 Id . § 20A-6-305(4)(d).

11 Id. §§ 20A-8-106, 20A-8-401(2)(c).

12 Id. § 20A-9-701(1)$




7

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 person’s political party certify to the State that the person is the party’s

endorsed and selected nominee;14 or

b. Complying with the election code’s 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 State’s primary election process “to nominate

some or all of its candidates.”16

27. The Utah election code currently recognizes, as it must, that the State’s

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

registered political party.”17

13 Id . § 20A-8-101.

14 Id . § 20A-9-701.

15 Id . §§ 20A-9-501(1), -601(1)$16

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




8

28. Otherwise, Utah’s 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 party’s 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 Party’s 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 Party’s 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

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

(2008) (citing Democratic Party of United States v. Wisconsin ex rel. La Follette, 450 U.S. 107,

122 (1981), and Jones, 530 U.S. at 574-75).19

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




9

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 Party’s county and state nominating conventions where

those delegates nominate the Party’s 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 Party’s Constitution and Bylaws establish the procedures for its

neighborhood caucus meetings.

a. The Party’s 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 Party’s 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

Party’s platform, and only after those agenda items do the members select delegates

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

22 Id . Art. XII.1.A; Bylaws § 9.A.3.




10

to the county and state nominating conventions.23

38. The Party’s 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 Party’s neighborhood caucus meetings to nominate candidates for

partisan elective office and adopt the Party platform.24

b.

The Party’s 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 Party will be considered by the convention.25

c. The Party’s Bylaws require that any candidate wishing to run for the Party’s

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

Platform, and submit it to the Party’s headquarters at least 30 days prior to the

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

convention, so that the Party’s delegates may consider in advance a candidate’s

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 Party’s

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:

23 Bylaws § 9.0.B.

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

25 Bylaws § 7.5.I.1.

26 Id. § 8.0.A.




11

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,


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

candidate’s office, so that the Party’s delegates may consider the candidate’s 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 Party’s

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 Party’s nomination.29

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

Party’s 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

27 Id . § 8.0.A.

28 Id . § 8.0.B.

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




12

State’s election officer to appear on the general election ballot as the Party’s 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 Party’s Constitution mandates that only voters who are registered

Republicans may vote in a Republican primary election.34

44. Because the Party’s convention system only chooses to use Utah’s primary

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

60% at convention, the current version of Utah’s 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 Party’s caucuses and county and state

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

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

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

32 Utah Code Ann. § 20A-9-403(1)(b).

33 Id . § 20A-9-403(2)(a).

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

35 Utah Code Ann. § 20A-9-403(5)(a).




13

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

the Party’s nomination make disclosure statements regarding the Party’s 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 Utah’s primary election process.36

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

Party’s right to certify to Utah’s lieutenant governor the names of the Party’s candidates and

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

Party’s 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”):

36 Party Const. Art. I.B.

37 Utah 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).




14

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

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

only utilizes Utah’s 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




15

political party selected its nominees to the party’s 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 Party’s 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 Utah’s election code

in a way that would affect the Party’s power and influence, unless the Party’s State Central

Committee voted, among other things, to: (1) change the Party’s 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

38 Id . § 20A-9-403(1).

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

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




16

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

predictability.”

53. In response to these efforts, the Party’s State Central Committee voted multiple

times to reject Count My Vote’s 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 Party’s 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 Party’s 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 Vote’s demands, on or

about May 18, 2013, the Party’s 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 Party’s 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




17

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 Party’s 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 Party’s

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

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

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




18

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 Vote’s 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 Party’s 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 party’s 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




19

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 State’s Presidential and CMV Processes, the State “shall ensure” that “no

other person is placed on the ballot” under that party’s 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 party’s 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 party’s 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[] active participation by party members,”46

and to

42 Utah 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.46 Id. §§ 20A-8-106, 20A-8-401(2)(c).




20

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 State’s 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 party’s endorsement appeared on the ballot, as the party’s nominee to be voted upon at

47 Id . § 20A-6-301(2)(a).

48 Id. § 20A-6-301(2)(a).

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

%& Id. § 20A-9-201(4)(a).




21

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

State’s 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 Utah’s lieutenant

governor to display the candidate’s name on the ballot as in the candidate’s 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 State’s CMV Process for selecting a party’s nominees does not

require any statement from the individual candidate seeking a party’s nomination as to the

party’s platform or message, or even confirmation that the candidate seeking a party’s

nomination is a member of that party, having actual affiliation with the political party as

opposed to just a statement of preferred affiliation.

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 party’s 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

51 Id. §§ 20A-6-301(2)(a), -9-701(1).

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

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




22

choices a political party has regarding its participation in the State’s 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,”54 but 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 ballot at 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 candidates for elective office in the manner prescribed.”55

75. In case that was too subtle, SB54 prohibited the use or production of any general

election ballot that “denotes affiliation between a registered political party … and a candidate for

elective office who was not nominated in the manner prescribed” in the State’s now-mandatory

Presidential and CMV Processes.56

76. Finally, SB54 amended the election code to require that registered political parties

in Utah declare their intent almost a year in advance of the regular general election to either

“participate in the next regular primary election,” or forego having their candidates for elective

office “featured on the ballot at the next general election.”57

Diluting A Party’s Message By Restricting Access To The General Election Ballot

77.

There is a reason supporters of SB54 were trying to herd political parties in Utah

into its proposed mandatory primary election process.

54 Id . § 20A-9-403(1)(b).

55 Id . § 20A-9-403(1)(b), as amended.

56 Id . § 20A-9-403(1)(c), as amended.

57 Id . § 20A-9-403(2)(a)(i), as amended.




23

78. SB54 eliminated the role and ability of a registered political party to choose its

preferred candidate selection process and certify its nominees to the State for offices to be voted

upon a the next general election,58

mandating instead that the State’s “lieutenant governor shall

certify … the names of each candidate nominated under” the Presidential or CMV Processes “for

offices to be voted upon at the regular general election,” display those names on the ballot, and,

except as the State certifies, “[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.”59

79. SB54 limits access to “regular primary ballot of the registered political party

listed on the declaration of candidacy” to only those candidates who can marshal resources to

obtain and submit “a set of nomination petitions that was (i) circulated and completed in

accordance with Section 20A-9-405; and signed by at least two percent of the registered political

party’s members who reside in the political division of the office that the person seeks.”60

80. And what is the purpose of these nominating petitions? SB54 creates a new

section of the election code devoted to the form and content of a nominating petition for the

gathering of signatures, including a “Warning” that it is misdemeanor for anyone to sign with a

false name or without the intent to become a registered voter by the time his or her signature is

certified, providing similar penalties for any malfeasance in the gathering of signatures.61

But the

description of nominating petitions is most notable for what it do not include: no place for a

meeting agenda of party members that involves a prayer, pledge and review of the party

58 Id. § 20A-9-403(1)(b) & -9-701(1).

59 Id . § 20A-9-701, as amended.

60 Id . § 20A-9-403(3)(a), as amended.

61 Id . § 20A-9-405, as enacted by Chapter 17, 2014 General Session (hereinafter “as enacted”).




24

platform; no place where a candidate is compelled to communicate his or her support for the

party’s platform; no place for a meeting or gathering where party members would be informed

before making their selection whether the candidate has accepted the party’s platform as the

standard by which his or her performance as a candidate and as an officeholder should be

evaluated; no requirement that the nominating petition even indicate what, if any, the person’s

signature represents as it concerns the candidate.62

81. SB54 seeks by its onerous signature-gathering requirements and mandatory

primary election process to force candidates seeking the nomination of a political party to divert

their time and energy in seeking the nomination away from communications to the political party

and its members that might compel a candidate to feel the need to be responsive to the political

party and its members, and to dilute the poignancy of the party’s message and its power to

demand accountability of the candidates it nominates.63

82. The number of signatures that SB54 requires for a candidate to qualify for a

party’s primary ballot presents additional issues in this regard: petitions must be “signed by at

least two percent of the registered political party’s members who reside in the political division

of the office that the person seeks.”64

A party that is more dominant in a particular political

division will suffer disproportionately from the effect and burdens of the State’s CMV Process.

83. SB54 devotes significant attention to the process of verifying those signatures on

a nomination petition.65 On the one hand SB54 suggests that a candidate seeking the nomination

62 Compare id., with Bylaws § 8.0.A.

'( See, e.g., Count My Vote, Why Change Utah’s Election System?, available at

http://www.countmyvoteutah.org/facts (as accessed October 16, 2014. 64

Utah Code Ann. § 20A-9-403(3)(a)(ii), as amended.65 Id . § 20A-9-403(3)(b)-(g), as amended.




25

of a political party may only count the signatures of that party’s “members,” but elsewhere

allows the collection of signatures from non-party members, so long as those members later

register, avoiding the issue of how that requirement would be enforced.66

84. The additional regulatory overhead that a candidate must manage as a result of

SB54 will affect the strategy and considerations that candidate will make in contemplating a race

for elected office as a party’s nominee away from the political party and its platform and toward

considerations of meeting the State’s regulatory scheme.

85.

SB54 reallocated from registered political parties to the State the power to certify

for the county clerks the names of party candidates listed on the primary ballot, for purposes of

giving notice of the primary to voters.67

As a result, SB54 also takes away from Utah registered

political parties the right to determine for themselves how to resolve any of the membership

disputes that may arise with respect to the verification of nominating petitions.

86. And SB54 amended the election code to provide for the CMV Process where the

State now certifies that “[c]andidates … 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,” pursuant to the candidate’s “preferred party affiliation” as displayed on the declaration of

candidacy, without the approval of that “preferred party’s” organization.68

87. SB54 did not limit the number of candidates who may run in the primary election

and certifies as a party’s nominee only the candidate “receiving the highest number of votes,”

such that, under SB54, the State dictates and certifies a party’s nominee without any guarantee

66 Id . § 20A-9-403(3)(a)(ii) & -9-403(d)(iv), as amended.

67 Compare id. § 20A-9-403(4)(c), with id . § 20A-9-403(4)(c), as amended.

68 Id . § 20A-9-403(5)(a), as amended.




26

that nominee will have ever received a majority vote from party members.69

88. Because there is no restriction in the primary election procedures imposed by

SB54 that would limit the field to two candidates for offices where there can be only one office

holder elected, and because the CMV Process does not mandate election by a majority vote in

the regular primary election, it threatens to impose on a party a nominee who does not have

support from the majority of party members and may not even be a party member having only

designated the “preferred party” on his or her declaration for candidacy.70

Diluting A Party’s Message By Forcing It To Open Its Primary To Unaffiliated Voters

89. Finally, SB54 created a new class of registered political party, called “qualified

political party,” or “QPP,” which appears to be a Trojan horse mechanism to force an open

primary, where unaffiliated voters can vote on a party’s nominees, on any political party who

may want to resist the other mandates of SB54.71

90. To become a QPP, a registered political party may still use its convention system

but only as an alternative path for candidates to qualify for the primary election that SB54

mandates, and in order to qualify as a QPP, a party must agree (1) to open its primary elections

to unaffiliated voters; (2) either to allow remote voting at its conventions or a way to designate

alternates when a delegate cannot be present at the party’s convention; (3) to not hold the

convention until after April 1; and (4) to certify that it will only permit its members to seek the

party’s nomination either by way of the process in Utah Code Ann. § 20A-9-407 (“QPP

69 Id .

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

71 Id . § 20A-9-406, as enacted.




27

Convention System”), or the process in Utah Code Ann. § 20A-9-408 (“QPP Petition System”).72

91. Through the QPP designation, the rights that SB54 takes away from political

parties to endorse its nominees with the party name and emblem on the general election ballot is

now reserved for parties that either comply with the Presidential and CMV Processes, which

dilute the party’s message as set forth above, or become QPPs, where candidates nominated

through the QPP Convention or Petition Systems can only become the party’s nominee subject to

a primary election where persons unaffiliated with the party can vote.73

92.

Because SB54 mandates that unaffiliated voters be allowed to participate in QPP

primary elections, it gives the State the authority to dictate and certify the nominees of QPPs

emerging from a primary election without any guarantee that those nominees actually receive a

majority vote from party members.74

93. SB54 requires that a QPP “shall participate” in a primary election where either

one or more candidates qualify as candidates under the QPP Convention System or two or more

candidates qualify as candidates under the QPP Petition System.75

94. Because SB54 does not limit the number of candidates who may emerge from the

QPP Convention or Petition Systems, but mandates a primary election where there are multiple

candidates, under SB54, the State will dictate and certify the nominees of QPP emerging from

any primary election on the basis of the “highest number of votes” received and without any

guarantee that the nominee certified by the State received a majority vote from party members. 76

72 Id . § 20A-9-101(12), as amended, & -9-406(2)-(8), as enacted.

73 Id . § 20A-9-101(12)(a), as amended, & -9-409, as enacted.

74 Id .

75 Id . § 20A-9-409(4)-(5), as enacted.

76 Id . § 20A-9-409(4)-(5), as enacted, & -9-403(5)(a), as amended.




28

SB54 Burdens The Party’s Rights

95. SB54 takes effect January 1, 2015, and it burdens rights held individually and

collectively by the Party, and its members, in a number of ways, including the following:

96. First, it takes away, and misappropriates to the State, the Party’s right to certify

and endorse its nominees for elected office.

a. Where the election code previously respected the rights of the Party to “certif[y] …

[its] nominees for offices to be voted upon at the regular general election” to the

lieutenant governor, who in turn would provide the names of those candidates to the

individual county clerks,77

b. as amended by SB54, the election code now mandates that Utah’s Lieutenant

Governor certify himself the Party’s nominees, without awaiting certification from

the Party, and prohibits the Party from being able to communicate its endorsement of

any other nominee on the ballot.78

97. Second, it takes away, and misappropriates to the State, the Party’s right to

communicate its endorsement on the general election ballot and to control the use of its name

and emblem on the ballot.

a. Where the election code previously respected the rights of the Party to establish its

own “ procedure for selecting party candidates at the federal, state, and county

levels” as long as it “allows active participation by party members,”79 and to place

the names of its candidates under the Party’s name and emblem, including with

77 Id . § 20A-9-701(1).

78 Id. § 20A-9-701(1)-(2), as amended$

79 Id. §§ 20A-8-106, 20A-8-401(2)(c).




29

the Party Mark,80

b. as amended by SB54, the election code now

i. prohibits the Party from indicating any “nominat[ion],” “affiliat[ion],”

“endorsement[],” or “symbols, markings, or other descriptions,” on the ballot

unless it nominates its candidates pursuant to the Presidential or CMV

Processes, and

ii. strips the Party of its right to place the names of its nominees on the ballot under

its name, title or emblem, and

iii. if the Party refuses to comply, relegates the Party’s nominees on the general

election ballots to a column with the other “unaffiliated” candidates “without a

party circle.”81

98. Third, it takes away, and misappropriates to the State, the Party’s right to

determine for itself the candidate selection process that will produce a nominee who best

represents the Party’s political platform.

a. Where the election code previously allowed the Party to determine for itself the

candidate selection process to produce a nominee who would best represent the

Party’s political platform, and allowed the Party to “choose[] to use the primary

election process to nominate some or all of its candidates,”82

b.

as amended by SB54, the election code now dictates that the Party “shall comply

with the requirements of this section and shall nominate its candidates for elective

80 Id . § 20A-6-301(2)(a).

81 Id . §§ 20A-6-301(1)(d)-(g), -301(2)(a), -302(1)(a), -303(1)(g), & -304(1)(g), as amended.

82 See id . §§ 20A-8-106, 20A-8-401(2)(c) & 20A-9-403(1)(b).




30

office in the manner prescribed,” if it desires to has its candidates appear on the

general election ballots featured with the Party’s affiliation, prohibiting any affiliation

with the Party from appearing on the ballot if the Party does not comply with the

mandates of SB54 in nominating its preferred candidates for elected office.83

99. Fourth, it burdens the Party’s associational rights by mandating changes to the

Party’s internal rules and procedures, at the threat of depriving the Party of its rights if it refuses

to comply, that disadvantage the Party, and that the Party has rejected and that conflict with the

rules the Party has determined for itself, as set forth in its Constitution and Bylaws, will produce

a nominee who best represents the Party’s political platform.




election process to nominate some or all of its candidates,” respecting that it may not

“govern or regulate the internal procedures of a registered political party,”84

b. as amended by SB54, the election code now dictates that, if the Party wishes to have

its candidates for elective office “featured on the ballot,” it “shall comply with the

requirements of this section and shall nominate its candidates for elective office in the

manner prescribed,”85

requiring a petition process that is more onerous for candidates

seeking the Party’s nomination than candidates seeking the nomination of other

parties, and conflicting with the Party’s Constitution and Bylaws that set the timing of

83 Id . §§ 20A-9-403(1)(a)-(c) & -403(2)(a), as amended.

84 See id . §§ 20A-8-106, -8-401(2)(c), -9-401(2), & -9-403(1)(b).

85 Id . §§ 20A-9-403(1)(a)-(c) & -403(2)(a), as amended.




31

the nomination process to allow meaning time to vet candidates86 and require, among

other things:

i. that its nominees be selected at state and county conventions by delegates who

are members of the Party and selected by other members at neighborhood

meetings that start with a prayer, the pledge and a review of the Party’s

platform;87

ii. that its nominees themselves be registered members of the Party and otherwise

meet the Party’s requirements to qualify for the Party’s nomination;88

iii. that its nominees make disclosures to the Party that they are “not a candidate,

officer, delegate nor position holder in any party other than the Republican

party” and that they have “read the Utah Republican Party Platform” and either

“support … and accept” that Platform “as the standard by which my

performance as a candidate and as an officeholder should be evaluated” or, with

exception of Platform provisions specifically noted by the candidate,


candidate and as an officeholder should be evaluated”;89

iv. that its nominees be selected only after the Party confirms that the candidates

running have made these disclosures regarding the Party’s Platform;90

v.

that its nominees be selected at conventions only after making substantive

86 See, e.g., Bylaws § 7.0.A (mandating a letter of intent to be received by the Party at least 30

days before convention).87

Party Const. Art. XII.1.A-.B, Art. XII.2.A-.J & Bylaws §§ 9.0.A.3, 9.0.B.88

Bylaws §§ 7.5.I.1 & 8.0.A.89

Id . § 8.0.A.90 Id . § 8.0.B.




32

nominating and acceptance speeches to the delegates voting;91 and

vi. that its nominees be selected by a supermajority of delegates at state and county

nominating conventions or a majority of Party members voting in primary

elections.92

100. Fifth, it burdens the Party’s associational rights, and the rights of disassociation,

by imposing upon the Party a nominee who may not necessarily be a Party member and without

guaranteeing that nominee has been selected by a majority of Party members participating in the

primary election.




election process to nominate some or all of its candidates,” which as set forth above,

ensured that its nominees were Party members and that any nominee selected in a

primary election would be by a majority vote,93

b. as amended by SB54, the election code now dictates that the Party “shall nominate its

candidates for elective office in the manner prescribed,” by the Presidential and SMV

Processes, which require only that a candidate for the Party’s nomination express his

or her “preferred” party affiliation and has no requirement that a nominee receive a

majority vote in the primary election.94

91 Party Const. Art. XII.2.F.

92 Id . Art. XII.2.H-.J & Art. XII.5.A-B; Utah Code Ann. § 20A-9-403(5)(a).

93 See Utah Code Ann. §§ 20A-8-106, 20A-8-401(2)(c) & 20A-9-403(1)(b); Party Const. Art.

XII.1.A-.B, Art. XII.2.A-.J & Bylaws §§ 7.5.I.1 & 8.0.A.94 Utah Code Ann. §§ 20A-9-403(1)(a)-(c), -403(2)(a) & -403(5)(a), as amended.




33

101. Sixth, it takes away the Party’s right to have its nominees commit themselves to

the Party Platform “as the standard by which my performance as a candidate and as an

officeholder should be evaluated,” and replaces it with a process that requires only that

candidates gather signatures.



Party’s political platform, and the Party required that candidates for its nominations

make a certified disclosure to the Party that they have “read the Utah Republican

Party Platform” and “support … and accept” that Platform “as the standard by which

my performance as a candidate and as an officeholder should be evaluated,” with any

exceptions notated,95

b. as amended by SB54, the election code now dictates that the candidates for the

Party’s nomination need only complete and file nomination petitions to qualify for the

primary ballot, and that only the candidate who receives the highest number of votes

in the primary may appear on the ballot with the Party’s endorsement.96

102. Seventh, it burdens the Party’s associational rights, and the rights of

disassociation, by taking away the Party’s convention system as its preferred way of selecting

nominees and allowing a party to designate candidates in the primary election by convention

only if it agrees to open that primary election, that the State now mandates, to persons

unaffiliated with the Party.

95 See id . §§ 20A-8-106, 20A-8-401(2)(c) & 20A-9-403(1)(b); Party Const. Art. XII.1.A-.B, Art.

XII.2.A-.J & Bylaws §§ 7.5.I.1 & 8.0.A.96 Utah Code Ann. §§ 20A-9-403(3)(a) & -403(5)(a), as amended.




34




election process to nominate some or all of its candidates,” which as set forth above,

the Party utilized only where a candidate was unable to get more than 60% at the

nominating convention,97

b. as amended by SB54, the election code only allows the Party to utilize a convention

for the purpose of designating candidates for the primary election ballot, and only if

the Party adopts a new classification, where it changes its rules and procedures to:

i. allow unaffiliated voters to participate in the Party’s primary election;

ii. allow delegates the right to vote remotely in the Party’s convention or a

procedure for designating alternate delegate;

iii. delay its convention until after April; and

iv. allow candidates to circumvent the convention and qualify for the Party’s

primary election ballot also through a petition process.98

c. In other words, the election code as amended by SB54 would only allow the Party to

retain its convention system if it agreed to open itself up to a process that allows

unaffiliated persons to vote in the Party’s primary and does not require that the

winning candidate be selected by a majority of those participating in the Party’s

97 See Utah Code Ann. §§ 20A-8-106, 20A-8-401(2)(c) & 20A-9-403(1)(b); Party Const. Art.

XII.1.A-.B, Art. XII.2.A-.J & Bylaws §§ 7.5.I.1 & 8.0.A.98 Utah Code Ann. § 20A-9-101(12), as amended, & -9-409, as enacted.




35

primary.99

103. Eighth, SB54 burdens the Party’s rights of association, free speech and due

process by, among other things, opening the Party up to unknown means of manipulating the

process by which its nominee is selected, as compared to the proven candidate selection process

it selected for itself; not providing adequate measures to ensure that its candidate selection

process is not diluted or manipulated by persons not affiliated with the Party; imposing

restrictions beyond those chosen by the Party in how it is defined or governed; undermining the

secrecy of the ballot in how persons signing nominating petitions must disclose their name and

addresses and cannot remove that information; having as its intent discrimination based on

viewpoint; requiring that candidates for the Party’s nomination modify their message as a result

of the law; discriminating against the Party in the threshold it requires; setting a time earlier than

the Party designated for itself to start the candidate selection process.

104. In summary, SB54 violates the Party’s 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 emblem, by substituting its judgment

for the judgment of the Party in how it selects nominees who best represents its political

platform, by threatening to deprive the Party of its rights and recognition as a registered political

party in the state unless it complies with the State’s mandates, which limit those rights.

105.

If the State is permitted to enforce SB54, contrary to the rights of the Party, the

conduct of primary and general elections in the State will be unconstitutional, result in legal

challenges, creating substantial risk that the results would be invalidated, and requiring that the

99 Id .




36

State would be forced to conduct additional primary elections and general elections at great

expense. The costs, delays, and uncertainties in the political process engendered by the

enforcement of SB54 events will irreparably injury the Party, its members and all other voters in

the State.

106. Voiding SB54 by court order is the only means to fairly and adequately protect

the Party’s and its members’ constitutional rights.

FIRST CAUSE OF ACTION

For Declaratory Relief Establishing The Unconstitutionality of SB54 For Violating TheParty’s Rights

107. Plaintiff incorporates and realleges the preceding paragraphs as though set forth at

length in this cause of action.

108. This claim for relief arises under the First and Fourteenth Amendments to the

United States Constitution, and 42 U.S.C. § 1983.

109.

An actual controversy exists between the Party and the State of Utah with regard

to the exercise of constitutionally protected First Amendment associational rights.

110. The Party is entitled to a declaratory judgment establishing the unconstitutionality

of the SB54 as applied to the manner in which

a. the State has taken away and misappropriated the Party’s right to certify and endorse

its nominees for elected office;

b. the State has taken away and misappropriated the Party’s right to communicate its

endorsement on the general election ballot and to control the use of its name and

emblem on the ballot;

c. the State has taken away and misappropriated the Party’s right to determine for itself




37

the candidate selection process that will produce a nominee who best represents the

Party’s political platform;

d. burdened the Party’s associational rights by mandating changes to the Party’s internal

rules and procedures, at the threat of depriving the Party of its rights if it refuses to

comply, that disadvantage the Party, and that the Party has rejected and that conflict

with the rules the Party has determined for itself, as set forth in its Constitution and

Bylaws, will produce a nominee who best represents the Party’s political platform;

e.

burdened the Party’s associational rights, and the rights of disassociation, by

imposing upon the Party a nominee who may not necessarily be a Party member and

without guaranteeing that nominee has been selected by a majority of Party members

participating in the primary election;

f. burdened the Party’s associational rights and rights to free speech, by taking away the

Party’s right to have its nominees commit themselves to the Party Platform “as the

standard by which my performance as a candidate and as an officeholder should be

evaluated,” and replacing it with a process that requires only that candidates gather

signatures; and

g. burdened the Party’s associational rights, and the rights of disassociation, by taking

away the Party’s convention system as its preferred way of selecting nominees and

allowing a party to designate candidates in the primary election by convention only if

it agrees to open that primary election, that the State now mandates, to persons

unaffiliated with the Party; and

h. otherwise burdening the Party’s rights of association, or depriving it of its rights of




38

disassociation, free speech and due process as set forth above.

111. SB54 authorizes and directs Defendants and other election officials to infringe on

the Party’s rights as set forth above without a compelling state interest.

112. Pursuant to 42 U.S.C. § 1983 et. seq., the Party is entitled to a declaratory

judgment declaring these rights, and to an award of reasonable attorneys’ fees and costs in this

action.

SECOND CAUSE OF ACTION

For Injunctive Relief To Prevent The Deprivation Of Plaintiff’s Constitutional Rights



114. Enforcement of SB54 constitutes an imminent and ongoing threat by the State of

Utah, acting by and through Defendants, to deprive the Party and its members of their civil rights

and constitutionally protected rights.

115. The Party will suffer irreparable injury if its nominees are selected in the manner

now dictated by the election code, as amended by SB54, where the Party and its members are

deprived of the right

a. to certify and endorse its nominees for elected office;

b. to communicate its endorsement on the general election ballot and to control the use

of its name and emblem on the ballot;

c. to determine for itself the candidate selection process that will produce a nominee

who best represents the Party’s political platform;

d. to determine the internal rules and procedures that govern that designated candidate




39

selection process, free of the State’s threat to deprive the Party of its rights if it

refuses to comply with rules that disadvantage the Party and that conflict with the

Party’s chosen rules;

e. to require that Party’s nominee is a member selected by either a supermajority of

Party delegates or a majority of Party members participating in the primary election;

f. to require that its nominees commit themselves to the Party Platform “as the standard

by which [their] performance as a candidate and as an officeholder should be

evaluated”;

g. to require that, in order to keep aspects of the Party’s convention system, the Party

open up its primary election, that the State now mandates, to persons unaffiliated with

the Party; and

h. to exercise its rights of association, free speech, and disassociation as set forth above.

116. SB54 deprives the Party, and its members and supporters, of the right to due

process of law as guaranteed by the Fourteenth Amendment to the United States Constitution,

without a compelling state interest.

117. Pursuant to 28 U.S.C. § 2201, the Court should enter a declaratory judgment

stating that SB54 violates the Party’s rights and 42 U.S.C. § 1983, and should enter a permanent

injunction enjoining enforcement or application of SB54 to the Party.

THIRD CAUSE OF ACTION

Trademark Infringement






40

119. Under 15 U.S.C. § 1125(a), a state or its employees acting in their official

capacity, who in connection with any goods or services, uses any word, term, name, symbol, or

any combination thereof, of any false designation of origin, false or misleading description of

fact, or false or misleading representation of fact, which is likely to cause confusion, or to cause

mistake, or to deceive as to the affiliation, connection, or association of such person with another

person, or as to the origin, sponsorship, or approval of his or her goods, services, or commercial

activities by another person, shall be liable in a civil action by any person who believes that he or

she is or is likely to be damaged but such act.

120. Under 15 U.S.C. § 1116, a party may obtain from this court an injunction to

prevent the violation of 15 U.S.C. § 1125(a), and under 15 U.S.C. § 1117, the prevailing party

may obtain damages, costs and reasonable attorney fees.

121. As demonstrated above, the State through SB54 has sought to misallocate the

name, title, emblems, and endorsements of the Party, including the Party Mark, and use them in a

way in its administration of the primary and general elections in Utah, and in the actions that it

seeks to prohibit by SB54, that falsely designates the Party’s endorsement of nominees, and

which is likely to cause confusion, mistake and deceive Utahns concerning the affiliation,

connection, sponsorship or association with the Party of the person receiving the Party’s

nomination under SB54, or contribute to the false designation of the Party’s endorsement, in a

way that harms the Party and dilutes its message.

122. Pursuant to 15 U.S.C. §§ 1116, 1117 & 1125(a), the Party is entitled to a

declaratory judgment, injunction, damages, costs and attorneys’ fees to remedy the infringement

of SB54 on the Party’s rights and enjoin the enforcement or application of SB54.




41

PRAYER FOR RELIEF

WHEREFORE, Plaintiff prays the Court for an entry of judgment in its favor and against

Defendants as follows:

1. A declaratory judgment, pursuant to 28 U.S.C. § 2201, declaring SB54 violates

the Party’s rights under the First and Fourteenth Amendments to the United States Constitution;

2. A declaratory judgment, pursuant to 28 U.S.C. § 2201, declaring SB54 violates

the Party’s rights to control and direct the use of its name, title, emblems, and endorsements, and

prevent the unlawful use of its name, title, emblems, and endorsements in a way that is likely to

cause confusion, mistake and deceive Utahns concerning the affiliation, connection, sponsorship

or association with the Party of the person receiving the Party’s nomination under SB54, or

contribute to the false designation of the Party’s endorsement under SB54, in a way that harms

the Party and dilutes its message;

3. A permanent injunction enjoining enforcement and implementation of SB54;

4. A judgment awarding Plaintiff its damages and costs of suit, including reasonable

attorneys’ fees under 15 U.S.C. § 1117 and 42 U.S.C. § 1988; and

5. Such other and further relief to which Plaintiff may be entitled.

Respectfully submitted this 26th day of November, 2014.

/s/ Marcus R. MumfordAttorney for Plaintiff




VERIFICATION

I, James Evans, Chairman of the Utah Republican Party, have read the foregoing

Complaint and declare under penalty of perjury that it is true and correct, and true and correct to

best of my knowledge, information and belief.

Executed on this 26th day of November, 2014.

_______________________________James Evans




Case 2:16-cv-00038-DN Document 2-2 Filed 01/15/16 Page 1 of 4

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