Utah Republican Party v. Cox

FILED
United States Court of Appeals
PUBLISH Tenth Circuit
June 8, 2018
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
FOR THE TENTH CIRCUIT
_________________________________
UTAH REPUBLICAN PARTY,
Plaintiff - Appellant,
and
UTAH DEMOCRATIC PARTY,
Plaintiff Intervenor,
v. No. 16-4091
(D.C. No. 2:16-CV-00038-DN)
SPENCER J. COX, in his official capacity (D. Utah)
as Lieutenant Governor of Utah,
Defendant - Appellee.
–––––––––––––––––––––––––––––––––––
UTAH REPUBLICAN PARTY,
Plaintiff,
and
UTAH DEMOCRATIC PARTY,
Intervenor Plaintiff - Appellant,
v. No. 16-4098
(D.C. No. 2:16-CV-00038-DN)
SPENCER J. COX, in his official capacity (D. Utah)
as Lieutenant Governor of Utah,
Defendant - Appellee.
_________________________________
ORDER
_________________________________
Before TYMKOVICH, Chief Judge, EBEL, and LUCERO, Circuit Judges.
_________________________________
These matters are before the court on the Utah Republican Party’s Petition for
Rehearing or Rehearing En Banc. We also have a response from the appellee and, per the
court’s order dated May 30, 2018, a reply in support. In addition, we have also
considered the amicus curiae brief of the Institute for Free Speech and we direct the clerk
to file that brief formally effective the date of this order. See 10th Cir. R. 29.1.
Upon consideration of all the materials, the request for panel rehearing is denied.
A panel majority has, however, concluded that a minor and sua sponte amendment of the
decision is appropriate. The opinion is, therefore, revised to add a footnote to page 47.
The opinion is otherwise unchanged. The clerk is directed to file the attached revised
version nunc pro tunc to the original filing date of March 20, 2018.
The appellant’s Petition, as well as the response, reply, and amicus curiae brief,
were also circulated to all the active judges of the court who are not disqualified. See Fed.
R. App. P. 35(a). As no judge on the original panel or the en banc court requested that a
poll be called, that part of the Petition seeking en banc reconsideration is likewise denied.
2
Chief Judge Tymkovich has written separately to concur in the denial of en banc
rehearing.
Entered for the Court
ELISABETH A. SHUMAKER, Clerk
3
16-4091 & 16-4098, Utah Republican Party & Utah Democratic Party v. Cox
TYMKOVICH, C.J., concurring in denial of rehearing en banc.
I concur in the court’s denial of rehearing en banc. The majority and
dissent clearly laid out the dueling arguments. I write separately to note the
issues raised here deserve the Supreme Court’s attention. The panel majority
pledges continued faith in an oft-repeated strand of Supreme Court dicta which,
as my dissent argues, has outlived its reliability. At this point, the Supreme
Court’s homage to State regulation of the primary election process is little more
than a nod to received wisdom. Cal. Democratic Party v. Jones, 530 U.S. 567,
572 (2000); see, e.g., American Party of Tex. v. White, 415 U.S. 767, 781 (1974).
Yet circumstances are much changed. Recent Supreme Court cases like
California Democratic Party v. Jones suggest this dicta does not provide the
whole truth. So too, do facts on the ground. The behemoth, corrupt party
machines we imagine to have caused the progressive era’s turn to primaries are
now, in many respects, out of commission. In important ways, the party system is
the weakest it has ever been—a sobering reality given parties’ importance to our
republic’s stability. And given new evidence of the substantial associational
burdens, even distortions, caused by forcibly expanding a party’s nomination
process, a closer look seems in order. The time appears ripe for the Court to
reconsider (or rather, as I see it, consider for the first time) the scope of
government regulation of political party primaries and the attendant harms to
associational rights and substantive ends.
FILED
United States Court of Appeals
PUBLISH Tenth Circuit
UNITED STATES COURT OF APPEALS March 20, 2018
Elisabeth A. Shumaker
FOR THE TENTH CIRCUIT Clerk of Court
_________________________________
UTAH REPUBLICAN PARTY,
Plaintiff - Appellant,
and
UTAH DEMOCRATIC PARTY,
Plaintiff - Intervenor,
v. Nos. 16-4091/16-4098
SPENCER J. COX, in his official capacity
as Lieutenant Governor of Utah,
Defendant - Appellee.
_________________________________
Appeal from the United States District Court
for the District of Utah
(D.C. No. 2:16-CV-00038-DN)
_________________________________
Marcus Mumford, Mumford Law, Salt Lake City, Utah, for Plaintiff-Appellant.
David P. Billings, Fabian VanCott, Salt Lake City, Utah (Peter W. Billings and Charles
A. Stormont, Fabian VanCott, Salt Lake City, Utah, and Clemens A. Landau,
Zimmerman Jones Booher, Salt Lake City, Utah, with him on the briefs), for Plaintiff -
Intervenor-Appellant.
Tyler R. Green (Stanford E. Purser with him on the brief), Utah Attorney General’s
Office, Salt Lake City, Utah, for Defendant-Appellee.
_________________________________
Before TYMKOVICH, Chief Judge, EBEL, and LUCERO, Circuit Judges.
_________________________________
EBEL, Circuit Judge.
_________________________________
These appeals are only the most recent volley in the spate of litigation that has
dogged the Utah Elections Amendments Act of 2014, commonly known as SB54,
since it was signed into law in March 2014. At issue here, SB54 reorganized the
process for qualifying for a primary ballot in Utah, most importantly by providing an
alternative signature-gathering path to the primary election ballot for candidates who
are unable or unwilling to gain approval from the central party nominating
conventions. Prior to the passage of SB54, the Utah Republican Party (“URP”)
selected its candidates for primary elections exclusively through its state nominating
convention, and it would prefer to continue to do so.
In this litigation, the URP sued Utah Lieutenant Governor Spencer Cox in his
official capacity (“the State”)1, alleging that two aspects of SB54 violate the URP’s
freedom of association under the First Amendment, as applied to the States by the
Fourteenth Amendment. The two challenged sections (1) require parties to allow
candidates to qualify for the primary ballot through either the nominating convention
or by gathering signatures, or both (the “Either or Both Provision”); and (2) require
candidates pursuing the primary ballot in State House and State Senate elections
through a signature gathering method to collect a set number of signatures (the
“Signature Requirement”). In two separate orders, the United States District Court
for the District of Utah balanced the URP’s First Amendment right of association
1
In Utah, the Lieutenant Governor administers the state election process.
2
against the State’s interest in managing and regulating elections, and rejected the
URP’s claims. Re-conducting that balancing de novo on appeal, we AFFIRM.
I. BACKGROUND
According to its constitution and bylaws, the URP’s process for nominating a
candidate to the general election proceeds along a singular path. Candidates present
their candidacy to the delegates at the party convention, and the delegates then
caucus for nominees for each office. If a single candidate achieves over 60% of the
caucus vote, that candidate is certified to the state for placement on the general
election ballot, and no primary is held. If no candidate receives 60% of the
convention vote, the top two candidates proceed to a state-administered primary
election involving only URP members. The winner of that primary election is then
certified to the state for placement on the general election ballot.
In 2014, the Utah Legislature—comprised of overwhelming Republican
majorities in both the State House and State Senate—passed SB54, which addressed
this process. Specifically, SB54 created two types of political parties: Registered
Political Parties (“RPPs”) and Qualified Political Parties (“QPPs”). Both RPPs and
QPPs are eligible to have the name of the party printed next to their candidates on the
general election ballot, Utah Code § 20A-6-301(1)(d); the only significant difference
being how each is permitted to qualify candidates for its primary election. Members
of RPPs who wish to participate in a primary election may do so only by gathering
3
the signatures of 2% of the eligible primary voters for the office sought. Utah Code §
20A-9-403(3)(a).
If a party chooses to register as a QPP, however, it may still hold a caucus, and
may certify the winners of the caucus to the primary ballot as before. See generally
Utah Code § 20A-9-406 et seq. But unlike under the previous system, a party may
not restrict access to the primary ballot just to candidates who emerge from the party
convention. Under SB54, a candidate who is unwilling or unable to gain placement
on the primary ballot through the caucus and convention may still qualify for the
primary by gathering a set number of signatures by petition from eligible primary
voters.2 Specifically, SB54 provides that in order to qualify as a QPP the party must
allow its members “to seek the registered political party’s nomination for any elective
office by the member choosing to seek the nomination by either or both of the
following methods: (i) seeking the nomination through the registered political party’s
convention process . . . or (ii) seeking the nomination by collecting signatures[.]”
Utah Code § 20A-9-101(12)(c) (“the Either or Both Provision”) (emphasis added).
It is clear from our review of the record that this “two-path” system was a
compromise crafted between Utah legislators hoping to preserve the URP’s caucus
system and outside interests pushing a pure primary system. The end result was that
2
For the State House and State Senate these numbers are 1,000 and 2,000
respectively. Utah Code § 20A-9-408(8)(ii–iii) (the “Signature Requirement”).
Those are the only two offices for which the Signature Requirement’s
constitutionality is at issue in this appeal. By contrast, the Either or Both provision,
the constitutionality of which we also address in this appeal, applies to more than
these two offices, and our consideration of that provision applies equally to all
candidates and offices covered by SB54.
4
a QPP’s primary ballot can now include both candidates who qualified through the
caucus and candidates who qualified by gathering signatures. Utah Code § 20A-9-
408. As originally passed, it also required parties to allow unaffiliated voters to
participate in their primary elections (the “Unaffiliated Voter Provision”), but that
provision was later invalidated and is not before us.
II. PROCEDURE AND JURISDICTION
A. The First Lawsuit
SB54 was signed into law on March 10, 2014, and the URP filed suit later that
year seeking an injunction and declaratory judgment that the law was
unconstitutional as applied to the URP (the “First Lawsuit”). The Constitutional
Party of Utah (“CPU”) joined the First Lawsuit, challenging the Signature
Requirement in particular.
In the First Lawsuit, the district court denied the URP and the CPU a
preliminary injunction, ruling that none of the alleged constitutional burdens were
severe save for the Unaffiliated Voter Provision, which was not yet ripe for review.
Utah Republican Party v. Herbert, 133 F. Supp. 3d 1337 (D. Utah 2015) (“URP I”).
Once the URP notified the state that it intended to become a QPP, that issue ripened
and the district court granted the URP summary judgment invalidating the
Unaffiliated Voter Provision. Utah Republican Party v. Herbert, 144 F. Supp. 3d
1263, 1278–82 (D. Utah 2015) (“URP II”).
5
In doing so, the court held that the Unaffiliated Voter Provision imposed a
severe burden on the URP’s associational rights and the State had no compelling
interest to justify that burden. Id. The practical effect of the First Lawsuit, then, was
to invalidate SB54’s Unaffiliated Voter Provision, see id., while upholding the
Signature Requirement, the Either or Both Provision, and all other aspects of SB54,
see id.; URP I, 133 F. Supp. 3d 1337. The rulings in the First Lawsuit are not before
us on appeal.3
B. The Second Lawsuit
After the First Lawsuit, the URP announced that it would permit nomination
only by caucus. The URP’s justification for doing so was that it interpreted the
Either or Both Provision as offering the political party (rather than the candidates)
the option to allow nomination by either the signature gathering method, or the
convention method, or both. The Lieutenant Governor responded that it was the
State’s position that under SB54 it is the party member’s choice, not the party’s,
whether to pursue the nomination using the signature gathering method, the
convention method, or both.
Following this interpretation by the Lieutenant Governor, the URP filed this
suit in the United States District Court for the District of Utah seeking declaratory
and injunctive relief that SB54 was unconstitutional. The phrasing of its Complaint
was similar to the Complaint filed in the First Lawsuit. See Utah Republican Party v.
3
The first lawsuit is, however, relevant to the present appeal in part because the URP
argues the State took positions during that lawsuit that it should be judicially
estopped from retracting in this action.
6
Cox, 177 F. Supp. 3d 1343, 1354 (D. Utah 2016) (“URP III”) (noting similarities).
The party reiterated its argument that SB54 violated its freedom of association under
the First and Fourteenth Amendments, and added a claim that the State should be
judicially estopped from advancing an interpretation of the Either or Both Provision
that differed from the one it advanced in the First Lawsuit. Shortly thereafter the
Utah Democratic Party (“UDP”) intervened as co-plaintiff to defend against the
possibility that portions of SB54 would apply to one political party but not the other,
and to complain that the URP’s bylaws and constitution violated SB54.
In February of 2016, the district court certified two questions of state law to
the Utah Supreme Court. The first requested that court’s interpretation of the Either
or Both Provision, asking whether that provision meant the candidate member or the
party had the right to choose which—or both—of the qualification processes to use.
See Utah Republican Party v. Cox, 178 F. Supp. 3d 1150, 1165 (D. Utah 2016)
(“URP IV”) (discussing certification). The Utah Supreme Court replied that the
Either or Both Provision allows the candidate member, not the party, to select which
of those two paths to follow in an effort to be certified to the primary ballot. Utah
Republican Party v. Cox, 373 P.3d 1286, 1287 (Utah 2016). The second question,
certified at the request of the UDP, was what would happen if a party elects to
become a QPP under Utah law, but fails to comply with the requirements of that
status. URP IV, 178 F. Supp. 3d at 1166. The Utah Supreme Court declined to
answer the second question, finding it not ripe for review because it was not yet clear
whether the URP was going to comply with SB54. Cox, 373 P.3d at 1288.
7
While waiting for those answers from the Utah Supreme Court, the UDP and
the State filed motions in federal court for judgment on the pleadings, and the URP
filed for partial summary judgment on its claims relating to the Signature
Requirement. On April 6, 2016, the district court ruled that (1) the URP’s claims
were not barred by claim preclusion, issue preclusion, or claim splitting, (2) the State
should not be judicially estopped from advancing its interpretation of the Either or
Both Provision, and (3) the Signature Requirement was valid because it did not
present a severe burden to the URP. URP III, 177 F. Supp. 3d at 1356, 1362, 1365.
The district court granted summary judgment for the State on the judicial estoppel
issue and also as to the signature requirements pursuant to Federal Rule of Civil
Procedure 56(f). Id.
After the Utah Supreme Court answered the certified questions, the district
court ruled on the remaining issues relating to the Either or Both Provision. It first
held that the URP was not precluded from challenging the constitutionality of the
Either or Both Provision, URP IV, 178 F. Supp. 3d at 1170, and that the Either or
Both Provision—as interpreted by the Utah Supreme Court—did not infringe on the
URP’s First Amendment right of association, id. at 1179. Finally, the court rejected
the URP’s claim that SB54 was the result of impermissible viewpoint discrimination,
and then the court granted summary judgment for the State. Id. at 1187.
URP timely appealed the district court’s grant of summary judgment. The
UDP subsequently cross-appealed, challenging the district court’s denial of judgment
on the pleadings based on assertions of claim preclusion, issue preclusion, and claim
8
splitting, and also the portions of the district court’s opinion which purport to
invalidate the URP’s bylaws and constitution to the extent those provisions conflict
with SB54. We consolidated the related appeals, and exercise jurisdiction under 28
U.S.C. § 1291.4
III. DISCUSSION
On appeal, this case presents two primary issues. First, the URP challenges
the district court’s decision to uphold the Either or Both Provision as a constitutional
electoral regulation. Second, URP argues that the district court erred in concluding
that the number of signatures required in the Signature Requirements for State House
and State Senate are not unconstitutionally burdensome. The district court granted
summary judgment for the State and against the URP on both these issues pursuant to
Rule 56(f). See URP III, 177 F. Supp. 3d at 1371 (awarding summary judgment
against the URP on the signature requirements under Fed. R. Civ. P. 56(f)); URP IV,
178 F. Supp. 3d at 1188 (awarding summary judgment against the URP on the Either
or Both Provision under Fed. R. Civ. P. 56(f)). On appeal we also address claims
raised by the UDP and the conduct of URP counsel Marcus Mumford.
“We review the district court’s summary judgment de novo, applying the same
standard as the district court,” and drawing all reasonable inferences in the light most
4
Upon initial review it was unclear whether all claims before the district court had
been adjudicated to finality. See 28 U.S.C. § 1291 (restricting appellate review to
“final” decisions from the district court). After we received supplemental briefing, it
became clear to us that all issues had been ruled upon, dismissed as moot, or mooted
by the district court’s rulings, so there was a final decision below.
9
favorable to the non-moving party. Ellis v. J.R.’s Country Stores, Inc., 779 F.3d
1184, 1191–92 (10th Cir. 2015) (internal citations and quotations omitted). After
careful review of the Record and the pleadings, we now AFFIRM the district court’s
grant of summary judgement for the Lieutenant Governor on both the Either or Both
Provision and the Signature Requirements, conclude that the UDP’s claims are not
ripe for review, and decline to pursue sanctions against Mr. Mumford. Each issue is
addressed below.
A. The Either or Both Provision
Under SB54, a political party that chooses to register as a QPP, and is
therefore eligible to maintain its caucus system, must alternatively allow its members
the option to “seek the . . . party’s nomination for any elective office by the member
choosing to seek the nomination by either or both of the following methods: (i)
seeking the nomination through the [the party’s] convention process . . . (ii) seeking
the nomination by collecting signatures . . . .” Utah Code § 20A-9-101(12)(c)
(emphasis added); see also Cox, 373 P.3d at 1287 (Utah 2016) (interpreting that
provision to offer the member, rather than the party, the choice). On appeal, the URP
argues that this provision is an unconstitutional burden on its freedom of association
under the First and Fourteenth Amendments. Aplt. Br. at 32–33 (citing N.Y. State
Bd. of Elections v. Lopez Torres, 552 U.S. 196, 202–03 (2008)).
“It is beyond cavil that ‘voting is of the most fundamental significance under
our constitutional structure.’” Burdick v. Takushi, 504 U.S. 428, 433 (1992) (quoting
Ill. Bd. of Elections v. Socialist Workers Party, 440 U.S. 173, 184 (1979). Access to
10
the ballot and the ballot box is the necessary catalyst in the carefully calibrated
system of individual freedoms and separation of powers crafted by our founding
fathers. Accordingly, we take great care to scrutinize any electoral regulation that
would appear to restrict this access.
“It does not follow, however, that the right to vote in any manner and the right
to associate for political purposes through the ballot are absolute,” Burdick, 504 U.S.
at 433 (citing Munro v. Socialist Workers Party, 479 U.S. 189, 193 (1986)), or that a
state may not pass reasonable, nondiscriminatory electoral regulations. The
Constitution grants states the right to prescribe “[t]he Times, Places and Manner of
Holding Elections for Senators and Representatives,” Art I, § 4, cl. 1, and the
Supreme Court has held that states enjoy similar authority to regulate their own
elections, see, e.g., Tashjian v. Republican Party of Conn., 479 U.S. 208, 217 (1986).
The Court has further recognized that “as a practical matter, there must be a
substantial regulation of elections if they are to be fair and honest and if some sort of
order, rather than chaos, is to accompany the democratic processes.” Storer v.
Brown, 415 U.S. 724, 730 (1974).
These regulations, however, whether they prescribe the time, place, and
manner of elections or otherwise provide for orderly selection of the people’s
representatives, will invariably impose some burden upon individual voters and
political parties. See Anderson v. Celebrezze, 460 U.S. 780, 788 (1983). For
example, even a state’s decision to close its polls at 7:00 PM instead of 8:00 PM will
invariably burden some voters—and therefore their respective parties—for whom the
11
earlier time is inconvenient; so too, however, if the state chose 8:00 PM instead of
9:00 PM. These burdens, then, must necessarily accommodate a state’s legitimate
interest in providing order, stability, and legitimacy to the electoral process. See
Timmons v. Twin Cities Area New Party, 520 U.S. 351, 358 (1997) (“[I]t is also
clear that States may, and inevitably must, enact reasonable regulations of parties,
elections, and ballots to reduce election- and campaign-related disorder.”) (internal
citations omitted).
Amidst this confluence of interests and burdens we analyze electoral
regulations using the now-familiar Anderson-Burdick balancing test. Under
Anderson-Burdick,
a court considering a challenge to a state election law must weigh ‘the
character and magnitude of the asserted injury to the rights protected by
the First and Fourteenth Amendments that the plaintiff seeks to
vindicate’ against the ‘precise interests put forward by the State as
justifications for the burden imposed by its rule,’ taking into
consideration ‘the extent to which those interests make it necessary to
burden the plaintiff’s rights.’
Burdick, 504 U.S. at 434 (quoting Anderson, 460 U.S. at 789). If, a regulation is
found to impose “severe burdens” on a party’s associational rights, it must be
“narrowly tailored to serve a compelling state interest.” Clingman v. Beaver, 544
U.S. 581, 586 (2005) (citing Timmons, 520 U.S. at 358). “However, when
regulations impose lesser burdens, ‘a State’s important regulatory interests will
usually be enough to justify reasonable, nondiscriminatory restrictions.’” Clingman,
544 U.S. at 586-87 (quoting Timmons, 520 U.S. at 358).
1. The Party’s Burdens
12
This case addresses Utah’s electoral regulations contained in SB54 that target
the method by which a QPP selects its nominee to appear on the general election
ballot for state and federal offices. In this process both the political party and the
state have legitimate constitutional interests that need to be balanced. While states
play an important role in “structuring and monitoring the election process, including
primaries,” the political parties also have a First Amendment Right of Association
that has to be balanced against the state’s interests. Cal. Democratic Party v. Jones,
530 U.S. 567, 572 (2000). It is through primary elections that a “party’s positions on
the most significant public policy issues of the day” are often determined, and it is a
party’s “nominee who becomes the party’s ambassador to the general electorate in
winning it over to the party’s views.” Id. at 575. The URP argues that SB54
infringes on its First Amendment associational rights by forcing it to adopt a
candidate-selection process different from that which it would prefer. However, the
Supreme Court has recognized that when political parties become involved in a state-
administered primary election, the state acquires a legitimate interest in regulating
the manner in which that election unfolds—subject only to the same interest-
balancing that occurs throughout the Court’s electoral jurisprudence.
The distinction between wholly internal aspects of party administration on one
hand and participation in state-run, state-financed elections on the other is at the heart
of this case. When a party selects its platform, its Chairman, or even whom it will
endorse in the upcoming election, the state generally has no more interest in these
internal activities than in the administration of the local Elks lodge or bar association.
13
But when the party’s actions turn outwards to the actual nomination and election of
an individual who will swear an oath not to protect the Party, but instead to the
Constitution, and when the individual ultimately elected has the responsibility to
represent all the residents in his or her district, the state acquires a manifest interest
in that activity, and the party’s interest in such activity must share the stage with the
state’s manifest interest. The dissent blurs this distinction between the party’s
internal and external activity.5
The Supreme Court’s jurisprudence has consistently reflected this difference
between a party’s internal mechanisms and its external manifestations.
A political party has a First Amendment right to limit its membership as
it wishes, and to choose a candidate-selection process that will in its
view produce the nominee who best represents its political platform.
These rights are circumscribed, however, when the State gives the party
a role in the election process—as New York has done here by giving
certain parties the right to have their candidates appear with party
endorsement on the general-election ballot. Then . . . the State acquires
a legitimate governmental interest in ensuring the fairness of the party’s
nominating process, enabling it to prescribe what that process must be.
N.Y. State Bd. of Elections v. Lopez Torres, 552 U.S. 196, 202–03 (2008) (internal
citations omitted).
Lopez Torres may be a relatively modern case, but the Supreme Court’s
recognition of the state’s vital regulatory role in primary elections is hardly a recent
development. As early as 1941 the Supreme Court held that state-administered
5
See Richard H. Pildes, The Constitutionalization of Democratic Politics, 118 Harv.
L. Rev. 28, 107, 107 n.323 (2004) (“[C]ourts must engage in direct, functional
analysis of the role of parties and primaries in American democracy. That analysis is
not furthered by reasoning analogically from the Jaycees, the Boy Scouts, the
Mormons, or similar religious or civil-society entities.”).
14
primary elections, as a “necessary step in the choice of candidates for election as
representatives[,]” are subject to congressional and state regulation. United States v.
Classic, 313 U.S. 299, 319–20 (1941). As our country grappled with the scourge of
racial and economic discrimination at the ballot box, the Supreme Court consistently
intervened in the so-called “White Primary Cases” to recognize that primary
elections—or even pre-primary party activity that restricted access to the primary
ballot—were sufficiently “state action” to trigger application of the Reconstruction
Amendments. See Terry v. Adams, 345 U.S. 461, 469–70 (1953); Smith v.
Allwright, 321 U.S. 649, 663–64 (1944).
To be sure, the “White Primary” cases do not stand for the proposition that the
“processes by which political parties select their nominees are . . . wholly public
affairs that States may regulate freely.” Jones, 530 U.S. at 572–73. Nor do we
suggest that a party’s decision to restrict its primary to only convention delegates via
the caucus approach is anywhere near the overt discrimination at issue in those cases.
Rather our consideration of those cases extends only insomuch as they indicate that a
party’s external activities in selecting candidates for public office must necessarily be
subject to greater state involvement and scrutiny than its wholly internal
machinations.6
6
To use the dissent’s example, the process by which parishioners choose their priest
has no external application. See Dissent at 16. A priest does not appear on a state-
run, state-financed ballot, and if a priest is successful in an election his duty is to his
parish and his faith, not the broader citizenry of the state or district. The state has no
interest, then, in the process by which that priest is chosen. But the URP is not a
parish or a club, but rather a political association whose activities run the gamut from
15
In recognition of the state’s role in ensuring a democratic and fair primary
election the Supreme Court has called it “too plain for argument . . . that the State
may . . . insist that intraparty competition be settled before the general election by
primary election or by party convention.” Am. Party of Tex. v. White, 415 U.S. 767,
781 (1974). Then, in 2000, the Court elaborated further, ruling that “a state may
require parties to use the primary format for selecting their nominees, in order to
assure that intraparty competition is resolved in a democratic fashion.” Jones, 530
U.S. at 572 (citing White, 415 U.S. at 781). All told, by the time Lopez Torres
arrived in 2008, the Court considered the issue settled, mentioning in passing: “To be
sure, we have . . . permitted States to set their faces against ‘party bosses’ by
requiring party-candidate selection through processes more favorable to insurgents,
such as primaries.” 552 U.S. at 205.
We recognize that each of these statements, while instructive, is technically
dicta, but it appears to be clearly established dicta. See Jones, 530 U.S. at 594
(Stevens, J., dissenting) (“I think it clear—though the point has never been decided
by this Court—‘that a State may require parties to use the primary format for
selecting their nominees.’”) (quoting majority). We are “bound by Supreme Court
dicta almost as firmly as by the Court’s outright holdings, particularly when the dicta
purely internal—such as voting on the party platform—to a hybrid internal-
external—such as nominating candidates who will appear on the general election
ballot in the hopes of being elected to represent not the URP, but the broader
citizenry of Utah. The entire point of the Supreme Court’s jurisprudence in this area
is to recognize that the state’s ability to regulate the association is not the same in the
second instance as it is in the first.
16
is recent and not enfeebled by later statements.” Gaylor v. United States, 74 F.3d
214, 217 (10th Cir. 1996) (internal citations omitted). This principle is especially
relevant where, as here, the dicta has been explicitly reaffirmed several times, across
multiple different eras, by Justices both in support and in dissent. See Tashjian v.
Republican Party of Conn., 479 U.S. 208, 237 (1986) (Scalia, J., dissenting) (basing
argument on “the validity of the state-imposed primary requirement” because the
Supreme Court has “hitherto considered [that validity] ‘too plain for argument’”).
Finally, if we were hesitant to follow this dicta, we could perhaps be persuaded by
our own circuit having favorably cited—without relying—on this very language as
early as 1988. See Rainbow Coal. of Okla. v. Okla State Election Bd., 844 F.2d 740,
745 n.7 (10th Cir. 1988) (noting that “the Supreme Court has pointed out ‘that the
State may . . . insist that intraparty competition be settled before the general election
by primary election or by party convention’”).7 In short, we are unwilling to ascribe
to so many jurists the contention that their reliance on this dicta was “completely
assumed and unreasoned.” See Dissent at 37.
7
We are hardly alone in recognizing the weight of this dicta. See, e.g., Alaskan
Indep. Party v. Alaska, 545 F.3d 1173, 1178 (9th Cir. 2008) (relying on this dicta to
uphold a primary scheme similar to the one at issue here); Cool Moose Party v.
Rhode Island, 183 F.3d 80, 83 n.4 (1st Cir. 1999) (suggesting based on White that a
mandatory primary is constitutional); Lightfoot v. Eu, 964 F.2d 865, 872 (9th Cir.
1992) (upholding a mandatory primary in part based on dicta from White); Az. Green
Party v. Bennett, 20 F. Supp. 3d 740, 748 (D. Ariz. 2014) (citing favorably to Jones
to establish that a party could not insist on using a nominating convention to avoid a
burdensome state law); Greenville Cty. Republican Party Exec. Comm. v. South
Carolina, 824 F. Supp. 2d 655, 666 n.7 (D. S.C. 2011) (relying on White for
proposition that a state may “mandate that a single nomination method be used by all
candidates and political parties”).
17
Furthermore, even beyond this consistent dicta, the Supreme Court has
explicitly upheld a State’s ability to regulate the scope of a party primary. In
Clingman v. Beaver, the Court considered the constitutionality of an Oklahoma law
restricting the right to vote in party primary elections to voters who were registered
as either independents or as members of the party. 544 U.S. at 584. There, a party
that wanted to open its primary to all registered voters sued, and the Court found that
the restrictive regulation only “minimally” burdened the party. Id. at 590. The Court
so held because “Oklahoma’s law does not regulate the [party’s] internal processes,
its authority to exclude unwanted members, or its capacity to communicate with the
public.” Id.
The same could be said of SB54. SB54 does not regulate the party’s internal
process; in fact its grand compromise was to maintain the URP’s traditional caucus
system as a path onto the primary ballot. Furthermore, because the First Lawsuit
excised the Unaffiliated Voter Provision, the law no longer proscribes the URP’s
authority to exclude unwanted members from its primary. Finally, nothing in SB54
prevents the URP from endorsing the candidate of its choice and using traditional
advertising channels to communicate that endorsement to the state’s voters. Contra
Eu v. S.F. Cty. Democratic Cent. Comm., 489 U.S. 214, 222–29 (1989) (invalidating
a California ban on primary endorsements). In light of the Supreme Court’s recent
and consistent dicta, as well as its holding in Clingman, we see no choice but to find
the Either or Both Provision only minimally burdensome on the URP.
18
As a final salvo, however, the URP argues that the Either or Both Provision
imposes severe burdens on its associational rights because it leaves the party
vulnerable to being saddled with a nominee with whom it does not agree. See Aplt.
Br. at 40. We are not so persuaded.
First and foremost, this case is not, as the dissent would suggest, about who
the candidates are, but rather who the deciders are. SB54 was not designed to change
the substantive candidates who emerged from the parties, but rather only to ensure
that all the party members have some voice in deciding who their party’s
representative will be in the general election. SB54’s goal was to ensure only that
the will of all the URP was not being truncated by an overly restrictive and
potentially unrepresentative nominating process.
Balancing the State’s interests against the interests of an association requires
us to define the association with the requisite specificity. Here, where the argument
is that SB54 may lead to a party nominating a candidate with whom it may not
agree,8 the question before this Court is whether the burdens imposed on the URP by
8
This is not to suggest that we disagree with the dissent’s observation that
“[p]olitical science literature has long observed parties have several components,
only one of which is their membership.” Dissent at 24. But in this context, in which
the question is whether the party is being forced to associate with individuals with
whom it may not agree, the Supreme Court has instructed that the relevant “Party” is
the collection of party members. In Jones, the Supreme Court distinguishes between
“party leadership[’s]” ability to endorse a candidate and “party members’” ability to
choose a nominee. 530 U.S. at 580. This distinction makes clear who the Jones
majority is referring to when it references “the party” in the final sentences of the
two ensuing paragraphs: “In any event, the ability of the party leadership to endorse a
candidate does not assist the party rank and file, who may not themselves agree with
the party leadership, but do not want the party’s choice decided by outsiders. . . .
19
SB54 are minimal or severe. See Aplt. Br. at 31 (defining the first step of the
Anderson-Burdick test as whether the law burdens a “political party’s constitutional
rights.”). Put another way, our task today is to analyze SB54’s burdens on the Utah
Republican Party, or, put still differently, the group of like-minded individuals in
Utah who have joined together under the banner of the Republican Party—rather than
just the leadership of the party.
The URP, like all political parties, has “a right to identify the people who
constitute the association, and to select a standard bearer who best represents the
party’s ideologies and preferences.” Eu, 489 U.S. at 224 (internal citations and
quotations omitted) (emphasis added). That is why the district court declared the
Unaffiliated Voter Provision, which forced the URP to allow nonmembers to help
select its candidates, unconstitutional in the First Lawsuit. URP II, 144 F. Supp. 3d.
at 1280.
But now that the Unaffiliated Voter Provision has been excised from SB54, the
URP is no longer in danger of fielding a general election candidate who does not
enjoy the support of at least a plurality of the voting members of the Utah Republican
Party.9 It is true, as has happened since the passage of SB54, in fact,10 that the
There is simply no substitute for a party’s selecting its own candidates.” Id. at 581
(emphasis added).
9
The Court is aware that under the new process, unlike under the old—in which no
more than two candidates could advance from the URP convention to the primary
ballot—the URP’s general election candidate could potentially receive a plurality,
rather than a majority, of votes in the primary election. The Court recognizes the
party’s interest in avoiding this outcome. However, while this interest was
20
eventual nominee may not enjoy the support of a plurality of the roughly 3,500 party
delegates that comprise the URP’s caucus electorate. But that failure does not
implicate the associational rights of the party, which consists of the roughly 600,000
registered Republicans in Utah, and which is not limited to the party-convention-
delegates.
The party leaders and convention delegates are still free to communicate to the
rest of their party which of the candidates on the primary ballot the leadership
supports.11 But if the URP wants to open its doors to roughly 600,000 people across
the state of Utah, the associational rights of the party are not severely burdened when
the will of those voters might reflect a different choice than would be made by the
party leadership. To say otherwise is to erroneously conclude that the rights and
interests of the association extend only to the rights and interests of the party
leadership. See Tashjian, 479 U.S. at 215 (“A major state political party necessarily
mentioned at Oral Argument, it was not included in the argument section of the
URP’s brief, and we “routinely have declined to consider arguments that are not
raised, or are inadequately presented in an appellant’s opening brief.” Bronson v.
Swensen, 500 F.3d 1099, 1104 (10th Cir. 2007). Furthermore, even if we do consider
this newly advanced interest, we find that, in light of this country’s historic
recognition of the legitimacy of plurality-based elections, the additional burden this
imposes on the URP is, at most, minimal. Cf. Whitcomb v. Chavis, 403 U.S. 124,
160 (1971) (“[W]e are unprepared to hold that district-based elections decided by
plurality vote are unconstitutional . . . .”.).
10
See John Verhovek, Saisha Talwar, and Adam Kelsey, Moderate mayor wins
republican primary to replace Rep. Chaffetz in Utah, ABCNews.com, Aug. 15, 2017,
http://abcnews.go.com/Politics/utahs-special-election-primary/story?id=49216793.
11
The URP may still communicate that information using the traditional channels of
political advertising.
21
includes individuals playing a broad spectrum of roles in the organization’s
activities.”).12 In further support, we need only look to the Supreme Court for
unambiguous direction: “To be sure, we have . . . permitted States to set their faces
against ‘party bosses’ by requiring party-candidate selection through processes more
favorable to insurgents, such as primaries.” Lopez Torres, 552 U.S. at 205.13
12
We also note that, in its Complaint filed in this lawsuit, the URP repeatedly
referred to SB54 as burdening the rights of “the Party and its members.” See, e.g.,
Aplt. App. at 26 (“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[.] . . . These are core Constitutional freedoms held individually and
collectively by the members of the Utah Republican Party, and by the Party itself.”)
(emphasis added). This accords with how the Supreme Court has identified the
constitutional right of association as it relates to a political party. See Norman v.
Reed, 502 U.S. 279, 288 (1992) (“For more than two decades, this Court has
recognized the constitutional right of citizens to create and develop new political
parties. The right derives from the First and Fourteenth Amendments and advances
the constitutional interest of like-minded voters to gather in pursuit of common
political ends, thus enlarging the opportunities of all voters to express their political
preferences.”).
13
The dissent cites to Eu, Dissent at 25, as a case where, according to the dissent, the
Supreme Court draws a distinction between the “Party” and its “members.” However
that is not an accurate reading of Eu. It is true that in Eu the Court uses the phrase
“the parties and their members,” but that phrase is used inclusively rather than
drawing a distinction between a party and its members. 489 U.S. at 232. The rights
of “the Party and their members” emphasizes the unity of the Party and its members
rather than attempting to draw a distinction between them. See also Timmons, 520
U.S. at 351.
Eu is also distinguishable in that it dealt primarily with the issue of a political
party in the speech, as opposed to associational, context. Party leadership may enjoy
different First Amendment speech rights than do individual members. Jones itself
discusses this distinction. 530 U.S. at 580 (“The ability of the party leadership to
endorse a candidate [speech context] is simply no substitute for the party members’
ability to choose their own nominee [associational context].”). This line leaves little
doubt that the scope of a political organization includes its members.
22
The unambiguous import of Lopez Torres is that in order to “set their faces
against ‘party bosses’” states may require primary elections. See id. (emphasis
added). This language establishes that the associational rights of a political party
expand beyond the party leadership, and would be toothless if party bosses could
dictate how candidates can qualify for the primary ballot, perhaps, for example, by
requiring candidates to win the support of “party bosses” in order to qualify for the
primary ballot, leading to primary “elections” with a single candidate on the ballot.
See also Alaskan Indep. Party v. Alaska, 545 F.3d 1173, 1179–80 (9th Cir. 2008)
(noting its skepticism that a scheme similar to that at issue in this case imposes a
severe burden on a party’s associational rights).
Finally, the dissent relies on Jones, but Jones is not contrary to our holding. In
that case, the Supreme Court held that states could not force parties to allow non-
members—“those who, at best, have refused to affiliate with the party, and, at worst,
have expressly affiliated with a rival”—to participate in that party’s primary election.
Jones, 530 U.S. at 577. Understandably, the Court held that such a “forced
association” intruded on the party’s First Amendment associational rights. Jones,
530 U.S. at 577; see also Democratic Party of the U.S. v. Wisc. ex rel. La Follette,
450 U.S. 107, 123–24 (1981).
But no such burden exists in this case. When SB54 was initially passed, it did
contain a significant associational burden in that it forced the party to associate with
unaffiliated voters. However, that issue was fought in the first lawsuit, and the URP
won. Now the URP’s nominee is decided only by those individuals who have chosen
23
to associate with the Party. Following the first lawsuit, SB54 is perfectly compliant
with the holding in Jones.
For these reasons, we conclude that SB54 does not impose a severe burden on
the URP by potentially allowing the nomination of a candidate with whom the URP
leadership disagrees. Therefore, in recognition of the Supreme Court’s repeated and
un-recanted dicta, we hold that the Either or Both Provision is at most only a minimal
burden on the URP’s First Amendment associational rights.14
2. The State’s Interests
When an electoral provision “places no heavy burden on associational rights,”
as we hold the Either or Both Provision does not, “a State’s important regulatory
interests will usually be enough to justify reasonable, nondiscriminatory restrictions.”
Clingman v. Beaver, 544 U.S. 581, 593 (2005) (quoting Timmons v. Twin Cities
Area New Party, 520 U.S. 351, 358 (1997)). This was the approach adopted by the
district court, which upheld the Either or Both Provision relying on the State’s
important regulatory interests of “managing elections in a controlled manner,
14
While the dissent can speculate that SB54 “interferes with the Party’s internal
procedures, changes the kinds of nominees the Party produces (is, in fact, meant to
do so), allows unwanted candidates to obtain the Party nomination, causes
divisiveness within the Party, and reduces the loyalty of candidates to the Party’s
policies[,]” Dissent at 21, we believe that is simply not an accurate representation of
the record before us.
24
increasing voter participation, and increasing access to the ballot.” URP IV, 178 F.
Supp. 3d at 1179 (citing Utah Code §§ 20A-9-401, 2-300.6).15
15
The dissent attempts to equate the motives of an advocacy group, Count My Vote
(“CMV”) with that of the Utah legislature. See, e.g., Dissent at 5, 17, 21, 32. The
problem with this approach is that in discerning legislative intent we look not to the
motive of advocacy groups, lobbyists, or even individual legislators, but the
legislature as a whole. So let’s talk about the legislature. First, a substantial majority
of the members of the Utah legislature are members of the URP. Second, if we were
to look to advocates rather than legislators, all indications are that CMV’s goal was
not to determine who won the URP’s nomination, but rather how that nominee was
selected. Finally, the record reflects that the Utah legislature was motivated to
preserve a representative and fair process rather than focusing on the specific
outcome of the process.
Let’s step back for a minute and reflect on what really happened. The process
that led to SB54 is certainly not determinative to our outcome, but it may be
informative. On one hand, the URP wanted to preserve its traditional caucus and
convention system, which was susceptible to strong influence by Party leadership.
On the other hand, CMV wanted a mandatory primary, which would entirely
eliminate the URP’s preferred system. CMV had a powerful piece of ammunition in
its arsenal in that it was threatening to take its idea to the voters directly via a ballot
initiative, and apparently the Republican majority in the state legislature gave
credence to that possibility. Thus was born the “Grand Compromise” where both
sides got something they wanted. The Party received the assurance that the nominee
it selected through its preferred caucus system would appear on the primary ballot.
CMV ensured that all party members had the opportunity to play a meaningful role in
selecting their Party’s nominee through a direct primary vote. And URP leadership
still retained the ability to advise the party membership as to who they endorsed and
to advertise and campaign for their preferred candidate. And who, perhaps, was the
biggest winner of this compromise? It was the heart and soul of the Republican
Party: its members writ large. They were given the right to ensure that they, the
URP, could decide with whom they wanted to associate on the general election
ballot. This compromise illustrates the best aspects of representative democracy and
honors the diverse interests that make up any political subdivision or district. See
Robert Gehrke, Senate advances bill that would nullify Count My Vote initiative,
Salt Lake Tribune, http://archive.sltrib.com/article.php?id=57575253&itype=CMSID
(Feb. 20, 2014, 6:08PM) (last visited, Feb. 28, 2018); Robert Gehrke, It’s back on:
Legislators, Count My Vote renew deal on election reform, Salt Lake Tribune,
http://archive.sltrib.com/article.php?id=57619746&itype=CMSID (March 2, 2014,
9:44AM) (last visited, Feb. 28, 2018).
25
The State favorably adopted the court’s reasoning on appeal, arguing that the
Either or Both Provision is a “reasonable regulation furthering the important Utah
interests of managing elections in a controlled manner, increasing voter participation,
and increasing access to the ballot[.]” Aple’s Br. at 34. Furthermore, these interests
were not the creation of the district court, but were rather advanced by the State in its
motion for summary judgment. Aplt. App. 629 n.91.
The Supreme Court has, in the past, accepted similar articulations of a state’s
interest in regulating elections. See, e.g., Crawford v. Marion Cty. Election Bd., 553
U.S. 181, 191 (2008) (describing the state interest generally as an interest in
“protecting the integrity and reliability of the electoral process”); Clingman, 544 U.S.
at 593–94 (identifying state interests generally as “preserv[ing] political parties” and
“enhance[ing] parties’ electioneering and party-building efforts”); Timmons, 520
U.S. at 364 (“States certainly have an interest in protecting the integrity, fairness, and
efficiency of their ballots and election processes.”).
These state interests constitute the very backbone of our constitutional
scheme—the right of the people to cast a meaningful ballot. That is one of the rights
through which all other rights are protected. In designing our delicate constitutional
scheme the founders recognized the importance of representative democracy. They
believed it was “essential to liberty that the government in general should have a
common interest with the people,” and they designed a system in which certain
branches of government “have an immediate dependence on, and an intimate
26
sympathy with, the people.” The Federalist, No. 52 (James Madison) (Terrance Ball
ed., 2003).16
Against this backdrop, a survey of the modern political landscape and its
decreasing number of truly competitive legislative districts demonstrates that this
right can be impaired or even rendered meaningless if not protected at the primary
level. Now, more than ever, “we cannot close our eyes to the fact . . . that the
practical influence of the choice of candidates at the primary may be so great as to
affect profoundly the choice at the general election . . . and may thus operate to
deprive the voter of his constitutional right of choice.” Classic, 313 U.S. at 319. A
government that refused to acknowledge its interest in protecting representative
democracy during primary elections would be ignoring its solemn obligation to
preserve Madison’s “sound and important principle that the representative ought to
be acquainted with the interests and circumstances of his constituents.” The
Federalist, No. 56 (James Madison) (Terrance Ball ed., 2003). After all, “a dominant
party’s primary can determine the representative ultimately elected[,]” LULAC v.
Perry, 548 U.S. 399, 487 (2006) (Breyer, J., concurring in part and dissenting in
16
See also Spencer Overton, Voter Identification, 105 Mich. L. Rev. 631, 657 (2007)
(explaining that “widespread participation” is a “crucial democratic value” for four
reasons: (1) exposing decision-makers to new ideas and viewpoints, (2) ensuring
democratic legitimacy, (3) redistributing government resources and priorities to
reflect evolving problems and needs, and (4) furthering self-fulfillment and self-
definition of individual citizens); Frances R. Hill, Putting Voters First: An Essay on
the Jurisprudence of Citizen Sovereignty in Federal Election Law, 60 U. Miami L.
Rev. 155, 156–57 (2006) (“The concept of consent as suggested by the first sentence
of the Constitution is not limited to the single act of ratifying the Constitution, but
rather is a process of continuing consent, expressed through continuing participation.
Such participation is the foundation of representative government.”).
27
part), and “[a]s a practical matter, the ultimate choice of the mass of voters is
predetermined when the nominations [by the major political parties] have been
made.” Morse v. Republican Party of Va., 517 U.S. 186, 205–06 (1996) (plurality
opinion) (internal quotations omitted) (alteration in original).
Are the voters who only participate in party primaries smarter than those who
gather for a caucus or convention? Do they make better choices? Perhaps not. But it
is not for us to debate the desirability of their outcomes if the voters are given a fair
chance to express their preferences.
3. Balancing the Burden on the Party against the Interests of the State
How could it not be true in a representative democracy such as ours that the
State has a strong—even compelling—interest in ensuring that the governed have an
effective voice in the process of deciding who will govern them? On balance, then,
the State interests in SB54 surely predominate over the minimal burdens imposed
upon the URP. 17 Accordingly we AFFIRM the district court’s holding that the Either
or Both Provision is a constitutional exercise of the State’s regulatory authority.18
17
The Ninth Circuit, presented with a similar law establishing a mandatory primary
at the expense of a party-nominating convention, held that the law survived even
strict scrutiny because it was narrowly tailored to advance the compelling state
interest of “eliminating the fraud and corruption that frequently accompanied party-
run nominating conventions.” Alaskan Indep. Party v. Alaska, 545 F.3d 1173, 1180
(9th Cir. 2008). We have no occasion to assess whether SB54 could similarly survive
strict scrutiny, but find that case nonetheless instructive in our assessment that
SB54’s similar restrictions can survive much less intensive scrutiny.
18
The URP also argues that the State should be judicially estopped from taking the
position that the candidate, not the party, is able to decide whether to seek the
nomination through the convention or through submitting signatures. Aplt. Br. at 48–
28
B. The Signature Gathering Requirement
The URP also argues that SB54 is unconstitutional because the signature
requirements for State House and State Senate are overly burdensome.19 Given that
the URP’s established procedures do not involve a signature-gathering path at all, the
URP’s preference is clearly to have the signature-gathering path to the primary ballot
eliminated all-together. Nonetheless, the crux of the URP’s argument challenging
this section is that the sheer number of signatures required to access the primary
ballot for these two offices is too high a barrier to entry, and thus it
unconstitutionally burdens the URP’s right of association. Put differently, the URP
argues here that the petition requirements established in SB54 make it too difficult to
qualify for the primary ballot for these offices, notwithstanding the fact that the URP
would undoubtedly prefer the signature-gathering requirements be so difficult to
attain that the only candidates who ever qualified for the primary were the candidates
who qualified by winning the URP’s caucus.
50. Its argument is based on a colloquy between the judge and counsel for the State
in the First Lawsuit. After reading the exchange, Aplt. App. 345–47, the Court is not
left with the impression that the position advanced by the State in the First Lawsuit is
“clearly inconsistent” with the position it advances now, see Hansen v. Harper
Excavating, Inc., 641 F.3d 1216, 1227 (10th Cir. 2011). For this reason, not to
mention the URP’s failure to cite to the Record in the argument section of its brief,
see Fed. R. App. P. 28(a)(8)(A), we AFFIRM the district court’s decision not to
apply judicial estoppel.
19
While SB54 establishes varying signature requirements to access the primary ballot
for all elections, the district court only discussed the potential unconstitutionality of
the requirements for two offices: State House and State Senate. URP III, 177 F.
Supp. 3d 1343, 1365 (D. Utah 2016). Therefore we restrict our consideration of the
signature requirements to the requirements established for those two offices.
29
We pause briefly to note that SB54’s severability clause would likely preclude
us from striking down the entire law even were we to rule in favor of the URP on this
issue, see Utah Code § 20A-1-103, but we nonetheless consider this argument in the
alternative, and ultimately conclude that the Signature Requirements—while a
burden—are not unconstitutional under the Anderson-Burdick balancing test as
applied to the URP.
Any form of candidate eligibility requirement necessarily implicates basic
constitutional rights, but as a practical matter “not all restrictions imposed by the
States on candidates’ eligibility [to appear on the] ballot impose constitutionally-
suspect burdens on voters’ rights to associate or to choose among candidates.”
Anderson, 460 U.S. at 788. As we have previously held, a “state has a legitimate
interest in requiring a showing of a ‘significant modicum of support’ before it prints
on the state election ballot the name of a political party and its slate of candidates,’”
noting that such a requirement “serves the important state interest of avoiding
‘confusion, deception, and even frustration of the democratic process[.]” Artunoff v.
Okla. State Election Bd., 687 F.2d 1375, 1378 (10th Cir. 1982) (quoting Jenness v.
Fortson, 403 U.S. 431, 442 (1971)). We have further recognized that there is no
hard-and-fast rule as to when a restriction on ballot eligibility becomes an
unconstitutional burden. See Artnunoff, 687 F.2d at 1379. Instead, candidate
eligibility requirements are considered under the Anderson-Burdick balancing test, in
which a court is to weigh the character and magnitude of the asserted injury to the
30
plaintiff against the interests advanced by the State as justifications for the eligibility
requirements. Anderson, 460 U.S. at 789.
Under SB54, an individual who wants to follow the signature-gathering path
onto a State Senate primary ballot is required to collect 2,000 signatures of registered
voters who are residents of the district and permitted by the party to vote for its
candidates in a primary election. Utah Code § 20A-9-408(8)(b)(iii). For a candidate
for the State House, the requirement is 1,000 signatures. Id § 20A-9-408-(8)(b)(iv).
The district court stated that these requirements, considered alone, “may be
unconstitutional as applied to the URP.” URP III, 177 F. Supp. 3d at 1366 (“[T]he
signature gathering requirements under Utah Code §§ 20A-9-408(8)(b)(iii) and -
408(8)(b)(iv) . . . may be unconstitutional as applied to the URP.”). Nonetheless,
because the court found signature gathering to be only an additional way of accessing
the ballot, and the other way to access the ballot—via the convention path—
constitutional, the district court did not invalidate the Signature Requirement, nor
did it strike down the law as a whole, relying on LaRouche v. Kezer, 990 F.2d 36 (2d
Cir. 1993). URP III, 177 F. Supp. 3d at 1368.
1. LaRouche v. Kezer
In LaRouche, two candidates for the Democratic nomination for president
challenged their inability to qualify for the Connecticut primary election ballot.
LaRouche, 990 F.2d at 37. At issue were two Connecticut ballot-access laws. The
first, the “media recognition” statute, required the Secretary of State to place on the
primary ballot those candidates who are “generally and seriously recognized
31
according to reports in the national or state news media.” Id. (quoting Conn. Gen.
Stat. § 9–465(a) (1989)). The second, the “petition alternative” statute, enabled
candidates failing to gain access under the media recognition statute to appear on the
ballot “if, within the next fourteen days, they collect signatures from one percent of
their party’s registered voters.” Id. (citing Conn. Gen. Stat § 9–465(b), 9–467 to 469
(1989)).
The district court in that case examined the two statutes in isolation, ultimately
upholding the petition alternative but ruling that the media recognition statute was
void for vagueness. LaRouche v. Kezer, 787 F. Supp. 298, 304–05 (D. Conn. 1992).
On appeal, the Second Circuit held that the district court had erred in analyzing each
statute separately. Rather, the court held, the constitutionality of a state’s ballot
access provisions should be examined in light of the entirety of the state’s
comprehensive election code. LaRouche, 990 F.2d at 39 (citing Burdick v. Takushi,
304 U.S. 428, 438–39 (1992); Storer, 415 U.S. at 738–40 (1974); Am. Party of Tex.,
415 U.S. at 786–87). From this perspective, the court concluded that:
if the petition alternative would be constitutional standing alone, the
additional method of a media recognition test is not in any sense an
unconstitutional burden. To the contrary, because it is not
constitutionally required, the media recognition test, whether or not
vague, increases the opportunities to get on the ballot and reduces the
burdens on candidates. . . . In short, if the district court was correct
about the constitutionality of the petition alternative standing alone,
then the media recognition statute is a fortiori valid as an additional
means of ballot access.
LaRouche, 990 F.2d at 38–39. The court did add, however, that this approach would
not save a ballot qualification statute if the statute were “wholly irrational—a coin-
32
flip test, for example[.]” Id. at 38 n.1. The lesson from LaRouche, then, is that,
provided it is not wholly irrational, an otherwise unconstitutional ballot-access
statute will not be struck down so long as there is an alternative, constitutional,
method of accessing the ballot.
We do not in this case need to adopt this as a per se rule. We do, however,
agree with the LaRouche court’s recognition of Supreme Court precedent—not to
mention our own precedent—as requiring us to analyze ballot-access opportunities in
sum rather than in isolation. See, e.g., Burdick, 504 U.S. at 438–39 (finding a ban on
write-in voting to be a limited burden “in light of the adequate ballot access afforded
under Hawaii’s election code.”); Artunoff, 687 F.2d at 1379 (holding that the
constitutionality of state ballot access laws should be determined only after “due
consideration is given to the practical effect of the election laws of a given state,
viewed in their totality”) (citing Clements v. Fashing, 457 U.S. 957 (1982)). The
lesson we take from LaRouche, then, is that when conducting Anderson-Burdick
balancing with regards to state ballot-access laws, due weight should be accorded to
whether a challenged provision stands in isolation as the sole method for accessing
the ballot, or whether candidates have alternative and constitutionally sufficient paths
through which to qualify. In the latter circumstance, the burden that any one
particular route to ballot access that the law places on candidates, voters, and parties
is necessarily reduced.
2. SB54
33
Applying this approach to the Utah Election Code, we find that the Signature
Requirement withstands constitutional scrutiny.
SB54 provides two methods for candidates to qualify for the primary ballot for
a QPP. First, a candidate may qualify for the primary ballot at the QPP’s nominating
caucus. Utah Code § 20A-9-407. No party to this lawsuit challenges the
constitutionality of this provision, and in fact the URP’s primary assertion, as
discussed above, is that this should be the only available method for qualifying for
the Republican primary ballot. Therefore, we accept that there is at least one
constitutional method of ballot access under the Utah election code.
The second method allows a candidate to gain access to the primary ballot by
gathering signatures of “registered voters in the state who are permitted by the
qualified political party to vote for the qualified political party’s candidates in the
primary election.” Utah Code § 20A-9-408(8). For candidates seeking a place on the
ballot for State House, the law requires the collection of 1,000 signatures. Id. at
20A-9-408(8)(b)(iv). For candidates seeking a place on the ballot for State Senate,
the required number swells to 2,000. Id. 20A-9-408(8)(b)(iii).20
20
When it drafted these figures the Utah legislature expected the pool of available
signatories to be roughly twice as large as it currently stands, thereby reducing the
required percentages by approximately half. After the district court struck down the
Unaffiliated Voter Provision in the First Lawsuit, however, the pool of registered
voters permitted to vote in a Republican primary election—the pool of available
signatories for a Republican candidate—dropped by nearly 46% statewide as
unaffiliated voters were no longer eligible to sign a candidate’s petition. As of
November 27, 2017, there were 603,195 registered unaffiliated voters in Utah, and
715,983 registered Republicans. Utah Lieutenant Governor Elections, Voters by
Party and Status, www.elections.utah.gov/party-and-status (last visited 11/27/2017).
34
In a perfect example of why it is prudent for legislatures to use ratio
requirements as opposed to absolute numbers, the burden imposed by the signature-
gathering requirements varies widely from district to district. At the outset of this
litigation, a candidate using the signature-gathering path to access the primary ballot
for State Senate needed to collect signatures from between 6.21% of registered
Republicans (in district 14) and 30.82% of registered Republicans (in district 1)
depending on the district in which he or she was running. The numbers are even
starker for the State House, where a candidate was required to collect signatures from
between 7.14% (in district 27) and 57.2% (in district 26) of the registered
Republicans in a given district.21 The URP argues that these numbers are so high as
to severely burden its right of association with potential candidates of its party and
cannot be saved as reasonably calculated to serve a compelling state interest. Aplt.
Br. at 42–45.
If the signature-gathering path stood alone we would be inclined to agree.
Petition requirements are a constitutional method of serving a state’s “legitimate
interest in requiring a showing of a ‘significant modicum of support’” before adding
a candidate to an election ballot, Artunoff, 687 F.2d at 1378 (quoting Jenness, 403
U.S. at 442), but the Supreme Court has not yet approved a requirement greater than
5% of the registered voters in a given election. See Jenness, 403 U.S. at 438
(upholding a statute requiring a petition signed by 5% of eligible voters in order for
21
These figures are drawn from the Record as it existed when the URP filed for
summary judgment on this issue on February 2, 2016. See Aplt. App. 431–435.
35
an independent candidate to qualify for the general election ballot). We do not hold
that 5% is the outer-boundary of what can pass constitutional muster, but it is likely
the limit is at least visible from there. Where, as here, the regulation requires
signatures from over 50% of the eligible voters in some districts, we can conclude
that the State’s legitimate interest in requiring a candidate to show a “modicum” of
support no longer outweighs the burden imposed on candidates, parties, and most of
all, voters, at least as to those districts.
However, when viewing the Utah Election Code in totality, See Artunoff, 687
F.2d at 1379, we are not convinced that the burdens imposed by the collection of
avenues Utah has created onto a primary ballot unconstitutionally burdens the URP’s
First Amendment right of association.22 First, the State has a significant interest in
regulating the manner in which a candidate may qualify for an election ballot.
A state has a legitimate interest in requiring a showing of a “significant
modicum of support” before it prints on the state election ballot the
name of a political party and its slate of candidates. This serves the
important state interest of avoiding “confusion, deception, and even
frustration of the democratic process at the general election.” Jenness v.
Fortson, 403 U.S. 431, 442, (1971). Furthermore, the states “have
important interests in protecting the integrity of their political processes
from frivolous or fraudulent candidacies, in ensuring that their election
processes are efficient, in avoiding voter confusion caused by an
overcrowded ballot, and in avoiding the expense and burden of run-off
elections.” Clements v. Fashing, 457 U.S. 957 (1982).
22
Our analysis here is confined to the question of whether the Signature Requirement
constitutes an unconstitutional burden on the URP. Because the litigants are political
parties and not candidates, we do not address the burdens imposed on individual
candidates.
36
Artunoff, 687 F.2d at 1378. This interest applies with equal force to primary
elections as it does to general elections. N.Y. State Bd. of Elections v. Lopez Torres,
552 U.S. 196, 204 (2008) (“Just as States may require persons to demonstrate a
significant modicum of support before allowing them access to the general-election
ballot, lest it become unmanageable, they may similarly demand a minimum degree
of support for candidate access to a primary ballot.”) (internal citations and
quotations omitted). Therefore, for Anderson-Burdick balancing purposes, these
“important regulatory interests” will be sufficient to uphold SB54’s Signature
Requirements provided the burdens imposed by those requirements are less than
severe. See Clingman, 544 U.S. at 586–87.
While the petition requirements standing alone would undoubtedly impose a
severe burden as to some districts, we cannot find them burdensome on the party
within the context of the electoral scheme as a whole. First, the signature-gathering
path is only one possible avenue onto the primary election ballot, and all parties to
this lawsuit concede the alternative—advancing from the party’s caucus—both is
constitutional and would be constitutional standing alone. Therefore, from the URP’s
perspective, the signature-gathering provision only “increases the opportunities to get
on the ballot” thereby reducing the burden placed on the URP and other political
parties. See LaRouche, 990 F.2d at 38.
Furthermore, over an objection from the URP, which tried to establish a
dispute of material fact, the district court found that notwithstanding the loftiness of
these requirements, the signature gathering path remained “a realistic means of ballot
37
access[.]” URP III, 177 F. Supp. 3d at 1369; see also id. at n.174 (“[T]he URP
recognizes that there are at least some URP candidates who have successfully met the
signature requirements to obtain access to the ballot.”). This also weighs in favor of
finding that the burden is less than severe.
Finally, we do recognize that some of these numbers—57%, in one particular
house district—are eye-popping. Yet we are struck that the enormity of these figures
says more about the compartmentalization of our current political landscape than it
does the validity of SB54. The 57% figure comes from House District 26 which was
one of only a handful of districts in Utah—an overwhelmingly Republican state—that
is packed so full of Democratic voters that Republicans did not even bother fielding a
candidate there in the most recent election. In 2014 the Republicans fielded a
candidate, but that candidate received just 28% of the votes, compared to 72% for the
Democratic candidate.23 According to data in the Record, in 2016 District 26 had
9,522 registered voters, just 18% of whom were registered Republicans. This in a
state where 48% of the registered voters statewide were registered Republicans.
Against this backdrop, it is more likely these eye-popping numbers say more
about modern political gerrymandering and segmentation than they about do the
constitutionality of SB54. Whether by overt gerrymandering, a growing tendency of
people to gravitate towards those who share their politics, or some combination of the
23
Utah Lieutenant Governor Elections, Election Results,
https://elections.utah.gov/election-resources/election-results, (last visited Nov. 27,
2017).
38
two, the percentages imposed by the Signature Requirement in several Utah districts
is so high precisely because there are so many Democrats packed into those particular
districts that the URP will never actually be able to capture that seat. Where the URP
has no reasonable likelihood of fielding or electing a serious candidate in those
districts with high percentage requirements of petition signatures, we cannot say the
URP has suffered any real injury to its constitutional right of association when it was
largely redistricting decisions that caused such anomalies.24
When we look at the state’s electoral scheme in totality, including the
retention of the caucus system as a method of qualifying a candidate for the primary
ballot, we conclude that the Signature Requirement does not impose a severe burden
on the URP’s associational rights. Therefore we hold that Utah’s legitimate interest
in requiring a candidate to demonstrate a minimum degree of support in terms of
gathering 1,000 or 2,000 signatures on a petition before being placed on the primary
ballot for the State House or State Senate is sufficient to outweigh the provision’s
minimal burdens on the URP. Therefore we AFFIRM the district court’s ruling that
the challenged Signature Requirements do not constitute an unconstitutional burden
on the URP.
C. The Utah Democratic Party
24
Nonetheless, this lawsuit demonstrates why states would be prudent to use
percentages, rather than absolute totals, when requiring candidates to obtain
signatures in order to qualify for the ballot. That way, as voter populations ebb and
flow and partisan compositions change district-by-district, the amount of support
necessary to demonstrate viability remains the same. This is the traditional method,
and one we strongly encourage states to adopt moving forward.
39
At the district court the Utah Democratic Party (“UDP”) intervened as a
plaintiff in part to “ensure [the State] appl[ies] the laws equally to all Utahns, no
matter what political party, if any, they choose to join.” Aplt. App. 99. The UDP—
joined in this instance by the State—argues that the URP’s arguments in this lawsuit
are barred by the doctrines of claim preclusion, issue preclusion, and claim splitting
based on the outcome of the First Lawsuit. Democrats Br. at 17–24; Aple. Br. at 47.
Because we hold that the URP’s constitutional claims fail, we have no reason to
reach the merits of the UDP’s cross-appeal from the district court’s ruling that the
URP’s arguments were not so barred.25
Additionally, the UDP argues that the district court erred in invalidating
portions of the URP’s constitution and bylaws that conflict with SB54 as interpreted
by the Utah Supreme Court and the district court. Democrats’ Br. at 9–10.
Specifically, the UDP takes issue with the district court’s comment that the “stated
URP intention to ban a member from nomination if that member fails to secure at
least 40% of the delegate vote at convention is directly contrary to state law and is
invalid.” See URP IV, 178 F. Supp. 3d at 1184. The UDP argues that the district
court was powerless to invalidate the URP’s bylaws, and the choice of whether to
comply with state law (and remain a QPP) or violate state law (and revert to RPP
status) should be left with the URP. Democrats’ Br. at 11–13. In other words, the
25
In so doing we also express no opinion on the URP’s claim that these arguments
necessarily fail under Rule 28(i) and the “cross-appeal” rule. See Aplt. Reply at 25–
27 (citing Fed. R. App. P. 28(i) and Bernstein v. Bankert, 733 F.3d 190, 224 (7th Cir.
2013)).
40
UDP argues that the district court should have invalidated the URP’s status as a QPP
rather than simply striking the offending provisions in the URP bylaws so the URP
would remain a QPP.
This is essentially the exact question certified to the Utah Supreme Court by
the district court earlier in this litigation. On April 8, 2016, the Utah Supreme Court
addressed the following question, certified at the request of the UDP: “If a registered
political party (RPP) that has selected to be designated as a Qualified Political Party
(QPP) fails to satisfy the requirements of a QPP, must the Lieutenant Governor treat
that political party as a RPP under Utah law?” Utah Republican Party v. Cox, 373
P.3d 1286, 1287 (Utah 2016). The Utah Supreme Court declined to answer that
question, concluding that it was not yet ripe for review. Id. We agree.
Drawing its application both from “Article III limitations on judicial power”
and “prudential reasons for refusing to exercise jurisdiction,” Stolt-Nielson S.A. v.
AnimalFeeds Int’l Corp., 559 U.S. 662, 670 n.2 (2010), “[t]he ripeness doctrine aims
to prevent courts from entangling themselves in abstract disagreements by avoiding
premature adjudication.” Awad v. Ziriax, 670 F.3d 1111, 1124 (10th Cir. 2012)
(internal quotations omitted). “A claim is not ripe for adjudication if it rests upon
‘contingent future events that may not occur as anticipated, or indeed may not occur
at all.’” Texas v. United States, 523 U.S. 296, 300 (1998) (quoting Thomas v. Union
Carbide Agric. Prods. Co., 473 U.S. 568, 580–81 (1985)). Prudential ripeness is
traditionally considered through the two-prong test established in Abbot Labs v.
Gardner, 387 U.S. 136, 149 (1967), under which courts assess (1) “the fitness of the
41
issues for judicial decision[,]” and (2) “the hardship to the parties of withholding
court consideration.” See, e.g., Fourth Corner Credit Union v. Fed. Reserve Bank of
Kan. City, 861 F.3d 1052, 1059 (10th Cir. 2017) (Matheson, J., concurring) (quoting
United States v. White, 244 F.3d 1199, 1202 (10th Cir. 2001)).
In declining to answer the certified question, the Utah Supreme Court noted
that it was as yet unclear whether the URP, if it were to lose its challenge to SB54’s
constitutionality, would enforce its constitution and bylaws. Utah Republican Party,
373 P.3d at 1288 (“At present there are multiple options available to the Republican
Party once this court’s interpretation of the QPP statute is published, and it is not
clearly established in the record which of those the party will choose.”). In assessing
the record before us, we find that nothing has changed in this respect. As the Utah
Supreme Court observed, the URP has offered conflicting statements during the
course of this litigation about its intention to comply with SB54. Compare id. at
1288 (“The Chairman of the Utah Republican Party sent a letter to the Lieutenant
Governor in December 2015 declaring that ‘it would restrict its candidate-selection
procedures to the convention method, thereby prohibiting any URP candidate from
gathering signatures.’”) with id. at 1288–89 (“More recently, however, counsel for
the Republican Party [stated that] ‘if the state law says that we have to allow both
routes and if that is what the Supreme Court decides and if we have elected to be a
QPP, then we would have to figure a way how to change our constitution and by-laws
to conform to the state law.’”).
42
Against this backdrop, the doctrine of ripeness counsels that it is premature for
this Court to determine the appropriate remedy should the URP flout the dictates of
SB54. Considering first the “fitness of the issues for judicial decision,” Abbott Labs,
387 U.S. at 149, we find that the UDP’s cross-appeal is littered with uncertainty.
Perhaps, following the conclusion of this lawsuit, the URP will expel members who
choose to pursue the primary ballot through the signature-gathering process. Doing
so would violate state law under the Utah Supreme Court’s interpretation of the
Either or Both provision, and the question of what remedy is appropriate would thus
ripen for review. Perhaps the URP will decline to enforce its bylaws, in which case
the UDP’s claim of hardship would become moot.26 Perhaps the URP will
voluntarily amend its constitution and bylaws in response to this litigation prior to
the 2018 election, which will again moot this question. Given this uncertainty, we
cannot conclude that the issue of what remedy is appropriate when a political party’s
constitution and bylaws contravene state law is prudently fit at this time for judicial
consideration before this court.27
26
It is possible that if the URP leaves its bylaws and constitution intact but simply
refuses to enforce them, there may be some hardship to individual candidates or the
UDP by virtue of the chilling effect those bylaws would have on potential candidates.
This issue was not raised by the parties, however, and thus we decline to address it.
The UDP’s claims were dismissed by the district court without prejudice, Aplt. App.
1203–04, thus if it would like to renew this claim of hardship at a later date, it is free
to do so.
27
The Court does take judicial notice of the fact that multiple Utah Republican
candidates have qualified for primary election ballots using the signature-gathering
method—including the current Republican Governor—and have not been expelled
from the Party. See, e.g., Ben Winslow and Mark Green, Gov. Gary Herbert forced
43
As for the second prong, “the hardship to the parties of withholding court
consideration,” id., we do not find that the UDP will be significantly impaired by our
decision here today. By declining to address the remedy of a violation which may
never occur, we simply maintain the status quo. Accordingly, we find that the
Democrats’ alleged injury is not ripe for review.
D. URP Attorney Marcus Mumford
Finally we address the conduct of Mr. Marcus Mumford, an attorney for the
URP. After he repeatedly missed deadlines at the Tenth Circuit, a panel of our
colleagues took the extraordinary step of placing Mr. Mumford on notice that “the
judges assigned to decide this appeal on the merits may wish to address in greater
depth counsel’s noncompliance with the court’s rules.” Utah Republican Party v.
Cox, No. 16-4091, Order Granting Appellant’s Motion to Accept Late Brief (Dec. 16,
2016).
Mr. Mumford triggered this notice through a series of procedural and
timeliness violations in the submission of his opening brief. First, the brief did not
satisfy this Court’s rules, in that it did not state the opposing party’s position on the
relief requested as required by Tenth Circuit Rule 27.1. Second, Mr. Mumford failed
to comply with Tenth Circuit Rule 31.5 by not providing this Court with hard copies
of his brief within two business days of the brief having been filed electronically.
into primary election with Jonathan Johnson, FOX31 SALT LAKE CITY, (April 23,
2016) http://fox13now.com/2016/04/23/gov-gary-herbert-forced-into-primary-
election-with-jonathan-johnson/ (“Because he gathered signatures under the “Count
My Vote” compromise law, Herbert has a guaranteed spot on the ballot, despite
failing to secure the convention nomination.”).
44
Our colleagues—correctly, in our opinion—noted but did not linger on these
errors. More troubling, however, was Mr. Mumford’s repeated inability to file
papers in a timely manner. Rather than paraphrase the extensive timeliness problems
associated with this brief, we simply incorporate our colleagues’ findings:
The opening brief was originally due September 27, 2016. The
appellant requested and was granted an extension of time to file the
opening brief until October 27, 2016. The appellant then requested a
96-day extension of time to file the opening brief, or until January 31,
2017. At the direction of the court, the appellant was granted a portion
of the requested extension. We allowed 30 additional days to file the
opening brief, which pushed the filing deadline to November 28, 2016.
The court advised that no additional extensions of time to file the
opening brief would be granted.
On November 28, 2016, the appellant electronically filed a four
volume appendix. No opening brief was submitted with the appendix,
however. Two days later, having received no opening brief, the court
issued a deficiency notice to the appellant regarding the missing brief.
The court sua sponte granted 10 additional days to file the opening
brief. The opening brief was due December 12, 2016.
With the additional time provided by operation of the deficiency
notice and an intervening weekend, the appellant had 14 additional days
beyond the final extension deadline to file the opening brief. But even
with all of this additional time, the appellant still did not file the
opening brief on the due date. The brief was due December 12, 2016,
but was not filed until the morning of December 13, 2016.
Compounding the problem further is the fact that the [Motion to Accept
Late Brief] was not filed until December 14, 2016, two days after the
deadline set in the deficiency notice expired.
Utah Republican Party v. Cox, No. 16-4091, Order Granting Appellant’s Motion to
Accept Late Brief (Dec. 16, 2016). Notwithstanding these errors, our colleagues
45
tolerantly excused the untimely submission and granted the Motion to Accept Late
Brief, albeit with the language regarding Mr. Mumford quoted above. Id.28
Like our colleagues, we are troubled by this pattern of untimeliness. If it were
to continue in future appeals we might be forced to consider taking action against Mr.
Mumford. While at this time we do not feel his conduct has risen to the level
necessary to support such drastic sanctions, he would be well-served to approach his
next foray into our courthouse with a keen attention to timeliness and detail.
IV. CONCLUSION
States must have flexibility to enact reasonable, common-sense regulations
designed to provide order and legitimacy to the electoral process. SB54, as modified
in the First Lawsuit, strikes an appropriate balance between protecting the interests of
the state in managing elections and allowing the URP and all other political
associations and individuals across Utah to express their preferences and values in a
democratic fashion and to form associations as protected by the First Amendment to
28
We also note that similar tardiness on Mr. Mumford’s part in the First Lawsuit led
that court to order Mr. Mumford to add co-counsel due to his “demonstrated inability
to manage deadlines and because of his repeated failure to comply with court orders
throughout this case[.]” Utah Republican Party v. Herbert, No. 2:14–CV–00876–
DN–DBP, 2015 WL 6394534, at *7 (D. Utah Oct. 22, 2015).
46
the Constitution.29 Not only does this balance not offend our Constitution, it is at its
very essence. Accordingly, we AFFIRM.
29
Of course, our decision addresses only the issues presented to us. We do not
address the reach of governmental power to regulate other associational nominating
decisions.
47
16-4091, Utah Republican Party v. Cox; 16-4098 Utah Democratic Party v. Cox.
TYMKOVICH, C.J., concurring in part and dissenting in part.
American legal thought is famed for its focus on procedure. And there is
good reason: as every first-year civil procedure student learns, substance and
procedure frequently form a Gordian knot—impossible to disentangle. 1 This
insight carries over into the Law of Democracy. One change to procedure can
work a profound change to the substance of political parties, including which
candidates they choose and what messages they communicate.
In this case, the Utah Republican Party claims that Utah’s 2014 election
law reforms purposely try to change the substantive type of candidates the Party
nominates, all the while masquerading as mere procedural reform. If true, such a
project would severely burden the Party’s associational rights, and without
compelling justifications, it would be unconstitutional.
Because that is exactly what Utah has tried to do and because Utah has not
provided adequate justification for placing such a burden on the Party’s
associational rights, I would hold Utah’s election law violates the First
Amendment. Though I dissent for this reason, I concur with the majority that the
number of signatures required by the law’s signature-gathering provision does not
violate the Constitution.
1
See Paul MacMahon, Proceduralism, Civil Justice, and American Legal
Thought, 34 U. Pa. J. Int’l L. 545, 594–610 (2013); see also Thurman W. Arnold,
The Role of Substantive Law and Procedure in the Legal Process, 45 Harv. L.
Rev. 617, 643 (1932).
I. Background
The Utah Republican Party argues Utah’s recent reforms violate its First
Amendment associational rights. Utah’s Lieutenant Governor contends Utah’s
legislation is well within the state’s regulatory power over elections. To evaluate
these claims, we must first look at what those reforms sought to accomplish.
A. Utah Republican Party’s Nomination Procedures
Before Utah passed legislation known as Senate Bill 54 in 2014, Utah
election law gave political parties freedom to choose how they would nominate
candidates for the general election. Parties could choose whether or not to use the
state’s primary election mechanism.
With that freedom, the Utah Republican Party chose not to use the primary
as its principal means of selecting candidates. Instead, the Party had, and
continues to employ, a carefully crafted convention process. Party members in
defined precincts conduct neighborhood caucus meetings. In accordance with the
Republican Party’s bylaws, each caucus meeting is open to the public and begins
with prayer, a recitation of the pledge of allegiance, and a reading of the Party’s
platform. The caucus attendees in turn select community representatives to serve
as delegates to the Party’s convention, where nominees will eventually be
considered and selected.
The Party’s nominating conventions are also open to the public. After
candidates or their representatives make nomination speeches, delegates cast their
2
votes for candidates to each office. If a candidate obtains sixty percent of the
vote, he or she becomes the Party’s nominee for that office in the general
election. If there are more than two aspiring candidates for a given office, ballots
are conducted until there are only two remaining candidates or until a candidate
gains sixty percent of the vote. And if there are two candidates left and neither
has obtained sixty percent of the vote, the candidates participate in a primary
election run by the state. This means the Party uses the primary election
mechanism only when no candidate for a contested office could obtain sixty
percent of the delegates’ vote. In other words, a consensus convention nominee
with sixty percent of the convention vote gets the nomination—leaving no room
for a party challenger by other means. 2
The Republican Party claims it has developed this convention-based
nomination process over the years to ensure the selection of nominees who will
best represent the Party’s platform. Because a maximum of two candidates ever
participate in a primary election for a given office, these procedures also
2
This did not mean the Party never participated in state-run primaries.
From 2002 to 2010, a number of state house and senate districts participated in a
Republican primary during each primary election cycle. See Utah Lieutenant
Governor’s Office, Election Results,
https://elections.utah.gov/election-resources/election-results (last visited Feb. 21,
2018). Nor did it mean conventions were an incumbent-protection machine. See
David Catanese, Sen. Bennett loses GOP Nomination, Politico (May 10, 2010),
https://www.politico.com/story/2010/05/sen-bennett-loses-gop-nomination-03696
0 (noting how outsiders beat incumbent Senator at the Party’s convention to gain
spots on primary ballot).
3
guarantee that nominees chosen through a state-run primary will have obtained a
majority (and not just a plurality) of party members’ votes.
The Party’s candidate qualification requirements, like its nomination
procedures, are designed to make certain that nominees are committed to the
Party’s platform. All candidates must file a statement certifying that they do not
hold a position in any other political party. They must also certify they have read
the Party’s platform and accept it as the standard by which their performance as
an officeholder will be evaluated. Candidates must file these certifications at
least thirty days before the convention. If they do not, the Party Chairman
announces this failure before the delegates vote.
As an additional security measure against the possibility of unfaithful
nominees, the Party’s bylaws require nominees to certify they will abide by the
Party’s nomination procedures. These procedures do not allow for any method to
gain the nomination other than competition in the Party’s convention.
B. Senate Bill 54
The events leading up to this case began in 2013. According to the Party,
and uncontested by Utah, a bipartisan group registered as the Utah Political Issues
Committee Alliance for Good Government, but known popularly as Count My
Vote, began lobbying the Party to change its nomination procedures. The group
believed the convention method gave “the most power and influence to those with
the most extreme views,” presumably because only the most fervent and eager
4
undertake the inconvenience of attending a caucus meeting. 3 In its view, this
“extremism” was pernicious because the Republican Party is presently the
dominant party in Utah and its nominees are favored to win many district- and
state-wide elections in the general elections.
To confront this perceived problem with the Republican Party’s nominees,
or in other words, to “require political party nominees to show a sufficiently
broad level of support in order to appear on the general election ballot,” 4
the group repeatedly asked the Party to change its nomination rules. If the Party
did not comply, the group threatened to bring a ballot initiative to change the
Party’s nomination rules against its will. Specifically, it wanted the party to
accept absentee votes at conventions and increase the number of votes required
for candidates to secure the nomination at a convention. This way, contested
nominations would more often be decided with a primary election.
The Republican Party refused. Undaunted, Count My Vote registered its
initiative and began efforts to persuade the Utah legislature to enact its desired
reforms.
The result was Senate Bill 54. Enacted in 2014, it completely overhauled
the requirements political parties must meet to have their nominees placed on
3
See Count My Vote, Why Change Utah’s Election System?,
http://www.countmyvoteutah.org/facts (last visited Feb. 21, 2018).
4
See Count My Vote, Citizens’ Initiative Petition 4–5 (2013),
http://www.countmyvoteutah.org/s/Submitted-Initiative-Application-duv3.pdf.
5
Utah’s general election ballot. No longer are parties free to select their
nomination procedures. “Each registered political party that chooses to have the
names of the registered political party’s candidates for elective office featured
with party affiliation on the ballot at a regular general election,” the bill provides,
“shall nominate the registered political party’s candidates for elective office in
the manner described in this section.” Utah Code Ann. § 20A-9-403(1)(b).
The bill creates two possible paths for political parties to earn the right to
place their endorsements on the ballot—they can be “registered political parties”
or “qualified political parties.” For registered political parties, participation in
the primary is mandatory. “Each registered political party” must “either declare
the registered political party’s intent to participate in the next regular primary
election” or declare that it chooses “not to have the names of the registered
political party’s candidates for elective office featured on the ballot at the next
regular general election.” § 20A-9-403(2)(a).
To earn a place on the primary ballot, candidates for a registered political
party have one choice only: to collect nomination petitions from “at least 2% of
the registered political party’s members who reside in the political division” for
the office sought. § 20A-9-403(3)(a).
A “qualified political party,” by contrast, is allowed to use a convention to
select nominees. But this comes at a cost. Qualified political parties must permit
delegates to vote by absentee ballot. And they must allow members to seek
6
nomination either by using the party’s convention or by collecting a statutorily-
designated number of signatures (which varies by office), or both. § 20A-9-101.
This is called the “Either or Both” provision.
Whenever there is at least one candidate chosen by convention and at least
one who gained candidacy for the same office by collecting signatures, a qualified
political party must participate in a primary election to choose between them.
The same is true when there are two or more persons who gained candidacy for
the same office by collecting signatures. § 20A-9-409(2). Unlike registered
political parties, then, qualified political parties do not necessarily have to
participate in the primary election. They only must do so when there are persons
who gathered signatures to become candidates.
Candidates who obtain “the highest number of votes” in the primary
election, regardless of whether they gained candidacy by convention or signature
collection, are deemed “nominated for that office by the candidate’s registered
political party.” § 20A-9-403(5)(a). Parties cannot opt out of this scheme while
still retaining their ability to list their affiliation with candidates on the ballot.
And that was not all. As originally passed, Senate Bill 54 also required
qualified political parties to allow voters unaffiliated with any party to sign
nomination petitions and vote in the party’s primary election.
7
C. The Lawsuits
In 2015, the Utah Republican Party filed suit against Utah’s Lieutenant
Governor to enjoin the law’s application to the Party. The Party concentrated its
arguments on the provision requiring it to allow unaffiliated voters to vote in its
primary and sign nomination petitions. The district court in Utah held that
provision unconstitutional because it unduly burdened the Utah Republican
Party’s associational rights. Utah Republican Party v. Herbert, 144 F. Supp. 3d
1263, 1278 (D. Utah 2015). That judgment is not before us. 5
The subject of this appeal is the Utah Republican Party’s second as-applied
challenge to Senate Bill 54. After the first suit, the Party sought clarification
from Utah’s Lieutenant Governor on whether he would uphold the Party’s
objections against any candidate who obtained a spot on the primary ballot by
using the signature gathering method, which the Party’s bylaws did not allow.
The Lieutenant Governor responded that his office would not uphold objections to
candidates solely because they used the signature-gathering method to gain
candidacy. State law, the Lieutenant Governor said, required the Party to allow
members to use the signature collection method to become a nominee.
5
The Utah Republican Party argues judicial estoppel prevents Utah from
asserting its interpretation of the Either or Both provision in this case. But a
review of the record unambiguously demonstrates that Utah’s position in the first
lawsuit is not at odds with its position in this case. See JA 1143.
8
In early 2016, the Party again filed suit, arguing, among other things, that
Senate Bill 54 was unconstitutional as applied to the Party because it (1) required
the Party to participate in a primary election; (2) required the Party to accept
candidates who gathered signatures, in violation of its bylaws; and (3) required an
unconstitutionally burdensome number of signatures for qualified political party
members to become State House or Senate candidates in the primary.
Upon certification from the district court, the Utah Supreme Court
interpreted the Either or Both provision and agreed with the Lieutenant Governor:
the law requires the Party to allow members to become nominees by collecting
signatures. 6
On motions for summary judgment and judgment on the pleadings, the
district court entered summary judgment for Utah on all claims, holding the
burden these provisions placed on the Republican Party’s associational rights was
not severe and that the state’s interests were substantial enough to justify what
little burden existed. The Utah Republican Party has appealed every claim. 7
6
Utah Republican Party v. Cox, 373 P.3d 1286, 1287 (2016). The Utah
Supreme Court declined to address what the consequences would be if the
Republican Party disobeyed Senate Bill 54 by, for example, expelling a member
who used the signature collection route to candidacy. Id. at 1288–89.
7
The Utah Democratic Party—which intervened below—also
cross-appealed on various grounds, but it cannot do so because it voluntarily
dismissed its claims below. Coffey v. Whirlpool Corp., 591 F.2d 618, 620 (10th
Cir. 1979).
9
I dissent because I believe the Party is correct that, in the circumstances of
this case, Utah’s interference in the Party’s nomination process was
unconstitutional. At a minimum, the majority is wrong to conclude Senate Bill 54
is clearly constitutional on this record. There is at least a material dispute of fact
as to the burden on the Party’s rights and the sufficiency of the state’s interests. I
concur with the majority that, if Senate Bill 54 is otherwise constitutional, the
number of signatures required for State House and Senate candidacies is not
unconstitutional. 8
II. Analysis
The election context is, like so many areas covered by the First
Amendment, one of competing rights. And like many situations in which two
constitutional principles come head to head, the touchstone of a court’s analysis is
balancing.
8
Utah argues (by incorporating the Utah Democratic Party’s argument)
that the Utah Republican Party’s claims are barred by issue preclusion, claim-
splitting, and claim preclusion because of its first lawsuit. After carefully
reviewing the record, it appears only the claim preclusion argument can possibly
have merit. It is clear from the record that claim preclusion does not apply to the
Republican Party’s claims against the Either or Both provision or the signature-
gathering provision. JA 582, 584–85. But the Republican Party’s first lawsuit did
squarely bring up a discriminatory animus claim. See JA 57–60, 77–78. And the
Party had all the information it needed to make that claim at that time.
Consequently, the Party’s discriminatory animus claim is barred by claim
preclusion. Lenox MacLaren Surgical Corp. v. Medtronic, Inc., 847 F.3d 1221,
1239 (10th Cir. 2017). Although we normally disfavor incorporation by
reference, cf. 10th Cir. R. App. P. 28.4, I would hold the district court erred by
not so deciding.
10
A. Legal Framework
“A political party has a First Amendment right to limit its membership as it
wishes, and to choose a candidate-selection process that will in its view produce
the nominee who best represents its political platform.” N.Y. Bd. of Elections v.
Lopez Torres, 552 U.S. 196, 202 (2008) (citations omitted) (approving convention
nomination process). Indeed, the First Amendment affords “special protection” to
“the process by which a political party selects a standard bearer who best
represents the party’s ideologies and preferences.” California Democratic Party
v. Jones, 530 U.S. 567, 575 (2000) (internal quotation marks and citation omitted;
alterations incorporated) (striking down blanket primary law). And this makes
sense, as the nomination process is one that “often determines the party’s
positions on the most significant public policy issues of the day, and even when
those 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.” Id.
At the same time, the Constitution explicitly grants states power to select
the “Times, Places and Manner of holding Elections for Senators and
Representatives,” U.S. Const. art. I, § 4, cl. 1, and this power is “matched by state
control over the election process for state offices.” Tashjian v. Republican Party
of Connecticut, 479 U.S. 208, 217 (1986) (striking down closed primary scheme).
Our evaluation of First Amendment challenges to state election laws
attempts to account for these dueling interests. We “must first consider the
11
character and magnitude of the asserted injury to the rights protected by the First
and Fourteenth Amendments that the plaintiff seeks to vindicate.” Anderson v.
Celebrezze, 460 U.S. 780, 789 (1983). We “then must identify and evaluate the
precise interests put forward by the State as justifications for the burden imposed
by its rule.” Id.
In balancing these considerations, “the rigorousness of our inquiry into the
propriety of a state election law depends upon the extent to which a challenged
regulation burdens First and Fourteenth Amendment rights.” Burdick v. Takushi,
504 U.S. 428, 434 (1992). When “rights are subjected to severe restrictions, the
regulation must be narrowly drawn to advance a state interest of compelling
importance.” Id. (internal quotation marks and citation omitted). “But when a
state election law provision imposes only reasonable, nondiscriminatory
restrictions upon the First and Fourteenth Amendment rights of voters, the State’s
important regulatory interests are generally sufficient to justify the restrictions.”
Id. (internal quotation marks and citation omitted).
Put more simply, if the burden on a Party’s rights is severe, the state must
have compelling interests in the regulation and the regulation must be narrowly
drawn to protect those interests. But if the burden is a slight one, important state
interests will do. So in this case, we must first consider the magnitude of the
law’s burden on the Republican Party’s associational rights. We then look to
whether the state’s interests justify that burden. Because we are reviewing a
12
grant of summary judgment as well as a constitutional challenge to a statute, our
review is de novo. Ball v. Renner, 54 F.3d 664, 665 (10th Cir. 1995); United
States v. Ramos, 695 F.3d 1035, 1045 (10th Cir. 2012).
B. The Mandatory Primary and Either or Both Provision
1. The Mandatory Primary provision and the Either or Both
provision must be evaluated together.
The Utah Republican Party elaborates separate arguments against (1) the
requirement that it participate in a primary to choose between signature-collecting
candidates and convention candidates (what it calls the “mandatory primary”),
and (2) the requirement that it allow members to become primary election
candidates by collecting signatures. But the distinction between the two
provisions has little relevance for the purposes of this analysis.
In this as-applied challenge, we evaluate only the provisions that apply to
the Utah Republican Party. Here, those are the provisions related to qualified
political parties, not registered political parties. While Senate Bill 54 requires
registered political parties to participate in the primary, it does not mandate
participation of qualified political parties in every case. Instead, qualified
political parties only have to participate in the primary when they must decide (1)
between signature-gathering candidates and convention-chosen candidates, or (2)
between two signature-gathering candidates. See Utah Code Ann. § 20A-9-
409(2). If a party’s only candidates for an office are chosen at its convention, the
13
party “may, but is not required to, participate in the primary election for that
office.” Id. For qualified political parties, then, the requirement to participate in
the primary only exists when the signature-gathering path to nomination is used.
In short, the two provisions work as one and cannot be evaluated
separately. The question is not whether each provision, in isolation, is
constitutional. It is whether this scheme, as a whole, imposes a severe burden on
political parties’ associational rights, and if so, whether Utah has presented
interests compelling enough to justify that burden.
2. The Burden
First, we analyze the burden. Senate Bill 54’s effects are further
confirmation of the truism that procedure can have enormous substantive
repercussions. Not only does the law interfere with the Utah Republican Party’s
internal procedures, but it also changes the types of nominees the Party will
produce and gives unwanted candidates a path to the Party’s nomination. By
doing so, Senate Bill 54 will inevitably cause divisiveness within the Party and
reduce candidate loyalty to the Party’s policies. Put together, these consequences
severely burden the Party’s ability to choose a loyal nominee and, ultimately, its
right to define itself and its message. I explain each of these effects in turn.
To begin, Senate Bill 54 “substitute[s]” the Utah legislature’s “judgment
for that of the party as to the desirability of a particular internal party structure.”
Eu v. San Francisco Cty. Democratic Cent. Comm., 489 U.S. 214, 233 (1989).
14
The law is, in effect, a sort of state-created majority veto over the candidates a
party selects through its carefully crafted convention process. And it gives
aspiring candidates license to ignore a party’s chosen convention procedures
without ever having to convince other members to vote to change those
procedures.
Such changes to a group’s internal nominee selection process affect a
group’s ability to define itself. That is to say, they change the group’s substance.
Consider as illustration a Catholic parish. Imagine a situation in which
parishioners could collect signatures to challenge their formally selected priest in
a congregational election. Would not something substantive about the church
have changed? Some might call this procedural reform. But it is more like a
Reformation. And the profound importance of leadership selection is not limited
to the religious context. Every group’s leadership-selection procedures help
define its substance—whether hierarchical, uber-democratic, or a mix. This
defining choice is, constitutionally, up to each group, unless important state
interests are at stake.
Here, the possibility Senate Bill 54 will substantively alter the Utah
Republican Party’s character is not mere speculation. It is very real. The Utah
Republican Party’s neighborhood caucus meetings are a communitarian
affair—with shared prayer, competition for delegate slots, and local
electioneering in support or opposition to candidates and platform
15
recommendations. Under Senate Bill 54, candidates can evade the scrutiny of
delegates chosen at these meetings, ignoring the caucus system altogether. In
effect, the new procedures transform the Party from a tight-knit community that
chooses candidates deliberatively to a loosely affiliated collection of individuals
who cast votes on a Tuesday in June. Cf. generally David P. Redlawsk et al.,
Why Iowa?: How Caucuses and Sequential Elections Improve the Presidential
Nominating Process (2010) (arguing that compared to a primary system, the Iowa
Caucus encourages greater candidate interaction with voters as opposed to
impersonal campaign advertising).
Second, Senate Bill 54 will likely change the types of candidates the Party
nominates. That was precisely the purpose of the law’s promoter, Count My
Vote. 9 A nomination process filtered through a convention of party regulars will
generate different candidates than one accomplished by polling the crowds,
among whom are many persons who only nominally associate with the Party.
Count My Vote understood that. So does the Party. Whether it makes candidates
more moderate, as Count My Vote would have it, or allows for more extreme
candidates divorced from the influence of party leadership, the signature-
9
See, e.g., JA 57–59; Count My Vote, Public Hearing Presentation,
http://www.countmyvoteutah.org/public-hearing-presentation (last visited Feb. 21,
2018) (Arguing the caucus system made “candidates more extreme, and amplified
non-competitive elections”); id. (“Delegate Priorities Don’t Represent Utah
Voters”).
16
gathering path to nomination will produce “nominees and nominee positions other
than those the part[y] would choose if left to [its] own devices.” See California
Democratic Party v. Jones, 530 U.S. 567, 582 (2000). 10
Third, the law violates the Party’s right not to associate with an unwanted
candidate, a “corollary of [its] right to associate.” Id. at 574. “In no area is the
political association’s right to exclude more important than in the process of
selecting its nominee.” Id. at 575. Yet under this regime, a person who collects
signatures can be named the Party’s nominee in spite of the fact that he or she has
broken the Party’s rules regarding how to seek the nomination.
What is more, this scheme allows nominal members or even members
hostile to the Party’s policies to hijack the Party’s platform. So long as a person
has means (by fame or fortune) to obtain the requisite number of signatures, he or
she can challenge the Party’s chosen convention candidate in a primary election.
This is no small burden on the Party’s right of dissociation, for the spoils of
winning the primary are not just a place on the general election ballot (which can
be obtained as an unaffiliated candidate). The spoils are a place as the Party’s
nominee.
10
As I discuss further below, there is no reason to believe that grass roots,
insurgent candidates are more likely to be the more centrist nominee. One only
need look around at a few recent elections at every level to know that claim is
dubious.
17
As even counsel for the Utah Democratic Party admitted at oral argument,
that presents a “[California Democratic Party v.] Jones problem,” 11 because it is
the kind of violation of the freedom not to associate that the Supreme Court
condemned in Jones, 530 U.S. 567 (2000). In that case, California enacted a
partisan blanket primary in which all voters, regardless of party affiliation, could
vote for any party’s nominees. Id. at 569–70. The Court held that scheme
unconstitutional in part because it created the possibility parties would be
“saddled with an unwanted, and possibly antithetical, nominee.” Id. at 579–81.
Forcing the Party to accept nominees who circumvent the Party’s chosen
nomination method by appealing to members at the fringes of the Party
accomplishes the same thing. It can “saddle” the Party with a nominee who is
“antithetical” to the integrity of the Party and its long-term message.
Fourth, this law is likely to cause divisiveness within the Party’s ranks. It
does not require much foresight to predict that a face-off between a Party’s
chosen convention candidate and a signature-gathering insurgent will create rifts
among the Party’s members. See Paul Pennings & Reuven Y. Hazan,
Democratizing Candidate Selection: Causes and Consequences, 7 Party Politics
267, 271 (2001) (discussing this effect for primaries). Fueling intra-party strife
11
Oral Argument at 16:40–17:45.
18
endangers an association’s very existence almost as much as the inability to
exclude. Neither houses divided nor houses without walls can stand.
Fifth, Senate Bill 54 may undermine “the loyalty of candidates to party
policies” by “putting candidates in a more independent position vis-à-vis the party
and its leadership.” Id. “[W]hen their nomination depends on the general
electorate rather than on the party faithful,” it is less likely that “party nominees
will be equally observant of internal party procedures and equally respectful of
party discipline.” Jones, 530 U.S. at 581. The same logic applies here.
While only party members can vote in the party’s primary, not all members
are the same. As the Supreme Court recognized, “the act of formal enrollment or
public affiliation with the Party is merely one element in the continuum of
participation in Party affairs, and need not be in any sense the most important.”
Tashjian v. Republican Party of Connecticut, 479 U.S. 208, 215 (1986). Senate
Bill 54 forces the Party to include people who only marginally identify with the
party in its nomination decisions. This change will lessen candidates’ loyalty to
the Party relative to the Party’s preferred convention process. A candidate may
still formally have to certify agreement with the Party’s policies, but faithful
delegates are no longer able to hold rogue candidates accountable. And because
more than two candidates may end up running in the primary election and split
the vote, a person can gain the nomination without a majority of the
vote—intensifying the risk that a nominee will be disloyal to the Party platform.
19
In sum, then, Senate Bill 54 interferes with the Party’s internal procedures,
changes the kinds of nominees the Party produces (is, in fact, meant to do so 12),
allows unwanted candidates to obtain the Party nomination, causes divisiveness
within the Party, and reduces the loyalty of candidates to the Party’s policies.
When an association grows large, the risk the association’s central message will
be lost amidst a sea of nominal members grows too—especially if the group must
maintain an inclusive membership policy. Many organizations respond by leaving
membership relatively open, but restricting leadership to those who are “true
believers,” so to speak, in the group’s mission. That is what the Party has tried to
do. At core, Senate Bill 54’s sin lies in taking this option away. In so doing, the
law constrains the Party’s ability to carry out its most central associational
mission—its selection of a faithful nominee.
In spite of the foregoing burdens, the majority opinion concludes the law’s
overall burden on the Party’s associational rights is light. The majority bases this
conclusion on five main reasons: (1) its conclusion the law does not regulate the
Party’s internal process, (2) the Party’s continued ability to use traditional
12
See Count My Vote, Why Change Utah’s Election System?,
http://www.countmyvoteutah.org/facts (last visited Feb. 21, 2018) (arguing the
convention system gives “the most power and influence to those with the most
extreme views”); Senate Day 24, 2014 53:00–60:00,
http://le.utah.gov/jsp/jdisplay/billaudio.jsp?sess=2014GS&bill=sb0054&Headers=
true (last visited Feb. 22, 2018) (Senator Bramble stating that Senate Bill 54
addressed Count My Vote’s concerns and attempted to increase “competitive
races between competing philosophies” in state primaries).
20
advertising channels to endorse the candidate of its choice, (3) the fact the Party’s
members still get to choose the nominee, (4) states’ ability to regulate “the scope”
of party primaries, Maj. Op. at 18, and (5) the Supreme Court’s dicta on the
power of states to mandate primaries. Since the Supreme Court’s dicta relates to
both the Party’s burden and Utah’s interest, I will address its continued vitality
after I discuss the relevant state interests. As for the other reasons, I respectfully
suggest they are mistaken.
To begin, the majority holds Senate Bill 54 does not “regulate the party’s
internal process” because “in fact its grand compromise was to maintain the
[Party’s] traditional caucus system as a path onto the primary ballot.” Maj. Op. at
19. Yet this observation misses the point. The problem is not that the Party
cannot use the caucus system at all. The problem is that the Party cannot use the
caucus system as its exclusive means of nomination while still being able to list
its endorsements on the ballot. The law requires the Party to allow members to
either force a primary race or participate in one by collecting signatures. It is
confounding to maintain that such a change does not “regulate the party’s internal
process.” 13
13
Because Senate Bill 54 was born of a “Great Compromise” between
Count My Vote and a mostly Republican legislature, the majority also suggests
the law actually helps the Party. Maj. Op. at 25 n.15. But why should it matter
the bill was a compromise the Utah legislature entered into to avoid a ballot
initiative? Whether or not the legislature was trying “to save the [Party] from
undertaking a course of conduct destructive of its own interests”—which in any
21
Next, the majority, like the district court, argues the Party’s freedom not to
associate with unwanted candidates is sufficiently protected because the Party’s
leadership can publicly disavow signature-gathering candidates. That cannot be
correct. Imagine a political party chooses a “legislator of the month” and gives
Senator Sally a badge. Now imagine the government confers that title to Bob as
well, and gives him an identical badge. It cannot be the case the party’s
associational rights have not been trampled upon simply because the party can
just tell people that Bob is not the “real” legislator of the month. If that were
true, not much would be left of the right not to associate.
In Jones, the “ability of the party leadership to endorse a candidate” did not
lessen the burden on “party members’ ability to choose their own nominee.” 530
U.S. at 580. So too, the ability to publicly disavow a candidate does not alleviate
the forced association imposed on the Party here. Persons who gather signatures
are listed as the Party’s candidates in the Party’s primary ballot and can become
the Party’s nominee in the general election ballot—all in contravention of the
Party’s express rules. The ability to publicly deny those candidates is no
solution. Indeed, tactical considerations will seriously constrain that ability in
event the state is not allowed to do, Tashjian, 479 U.S. at 224—Senate Bill 54
coerces the Party just as much as an initiative would have. And, more to the
point, the Party and the Republican members of Utah’s legislature are not entirely
the same thing or necessarily aligned on every issue.
22
practice: the denounced candidate may end up the Party’s only nominee in the
general election.
The majority further suggests, again like the district court, that there can be
no severe burden on the Party so long as nominees are ultimately chosen by the
Party’s members. The majority argues we must “define the association with the
requisite specificity” and proceeds to define the Party as a collection of “roughly
600,000 registered Republicans.” Maj. Op. at 20-22. Because Senate Bill 54 still
permits those party members to choose the nominee, the majority concludes the
burden is minimal.
There are two problems with this theory. First, it assumes that nothing of
substance changes when nomination is transferred from the party’s established
convention-based system to a large-scale vote by its members. The error of this
line of reasoning has already been explained. Nomination procedures can be
substantive, and we err if we consider such a change immaterial.
Second, in order to hold that all is well so long as Party members choose
the nominee, the majority defines political parties as merely a collection of
members. That is wrong. A political party is more than the sum of its members.
Political science literature has long observed parties have several components,
only one of which is their membership. See, e.g., Nathaniel Persily & Bruce E.
Cain, The Legal Status of Political Parties: A Reassessment of Competing
Paradigms, 100 Colum. L. Rev. 775, 778 (2000) (describing the distinction
23
between the “party-in-the-electorate,” the “party-in-the-government,” and
“professional political workers”). Parties therefore have associational rights that
are distinct from those of the individuals that form its membership. The
superstructure of the party—its bylaws, customs, and leadership—are protected
by the First Amendment too.
If this were not true, then states would have plenary power to alter the
internal regulations of political parties, so long as they left ultimate nomination
decisions up to party membership. But the Supreme Court has already rejected
that theory. It has held that “[f]reedom of association also encompasses a
political party’s decisions about the identity of, and the process for electing, its
leaders” and that “a State cannot substitute its judgment for that of the party as to
the desirability of a particular internal party structure.” Eu v. San Francisco Cty.
Democratic Cent. Comm., 489 U.S. 214, 229, 232–33 (1989). And, contrary to
the majority’s suggestion, these rights are not cabined to “internal activity.” See
Maj. Op. at 14. They extend to a party’s choice of nominee too. Tashjian dealt
with what the majority might call the “external activity” of nomination, and yet
the Court still explained that a “Party’s determination of the boundaries of its own
association, and of the structure which best allows it to pursue its political goals,
is protected by the Constitution.” 479 U.S. at 224 (emphasis added).
What is more, the Supreme Court routinely distinguishes between “the
rights of political parties” and those of “their members.” See Eu v. San Francisco
24
Cty. Democratic Cent. Comm., 489 U.S. 214, 219, 231, 232, 233 (1989); id. at
229 (“These laws directly implicate the associational rights of political parties
and their members” (emphasis added)); Tashjian, 479 U.S. at 217 (evaluating “the
burden cast by the statute upon the associational rights of the Party and its
members” (emphasis added)); Timmons, 520 U.S. at 363 (the statute did not
“restrict the ability of the New Party and its members to endorse . . .” (emphasis
added)); Jones, 530 U.S. at 581 (“the ability of the party leadership to endorse a
candidate does not assist the party rank and file, who may not themselves agree
with the party leadership, but do not want the party’s choice decided by
outsiders”).
In Jones, it is true, the Supreme Court specifically emphasized the fact that
party members could not choose nominees. Id. But the Supreme Court did not
thereby hold that a party is only defined by its members. In fact, that case was
brought because party leadership and bylaws allowed only party members, and
not non-members, to choose the nominee. 14
Lastly, the majority claims Senate Bill 54 does not unduly burden the Party
because it only regulates the “scope of a party primary.” See Maj. Op. at 18
14
This conclusion does not entail, as the majority suggests, holding that
“the rights and interests of the association extend only to the rights and interests
of the party leadership.” See Maj. Op. at 22. It merely entails an
acknowledgment that the First Amendment protects the rights of a political
party’s superstructure as well as the rights of party members.
25
(emphasis in original). It is unclear what is meant by the “scope” of a primary,
but Clingman v. Beaver, cited as support for this proposition, only holds that
states can restrict the pool of voters who can vote in a state-run primary to a
party’s members and Independents. 544 U.S. 581, 590 (2005). The reasons for
that holding—most saliently that “a voter who is unwilling to disaffiliate from
another party to vote in [a party’s] primary forms little ‘association’ with the
[party]—nor the [party] with him”—are wholly absent in this case. See id. at 589.
And nothing in Clingman’s holding suggests the State has carte blanche authority
to reshape a Party’s nomination procedures. Indeed, even the state’s authority to
limit the voter pool for a state-run primary is limited. The Supreme Court has
held parties have a First Amendment right to include unaffiliated voters in their
party primaries. Tashjian, 479 U.S. at 210–11.
In addition to the reasons the majority provides, the district court proffered
one more: Senate Bill 54 does not substantially restrict the Party’s associational
rights because the Party is not required to become a qualified political party. In
other words, the Party can operate as an unregistered political party, using
whatever nomination procedures it wants. The only cost, the district court noted,
would be to forfeit the ability to have its endorsements printed on the ballot. And
because the Supreme Court has said the “First Amendment does not give political
parties a right to have their nominees designated as such on the ballot,”
26
Washington State Grange v. Washington State Republican Party, 552 U.S. 442,
453 n.7 (2008), the district court concluded there was little, if any, burden.
But the district court down-played that even while there may not be a
constitutional right to have endorsements printed on the ballot, the
“unconstitutional conditions doctrine holds that the government may not deny a
benefit to a person on a basis that infringes his . . . freedom of speech” or
association “even if he has no entitlement to that benefit.” Bd. of Cty. Comm’rs,
Wabaunsee Cty., Kan. v. Umbehr, 518 U.S. 668, 674 (1996) (internal quotation
marks and citation omitted). For if “the government could deny a benefit to a
person because of his constitutionally protected speech or associations, his
exercise of those freedoms would in effect be penalized and inhibited. This
would allow the government to produce a result which it could not command
directly.” O’Hare Truck Serv., Inc. v. City of Northlake, 518 U.S. 712, 717
(1996) (internal quotation marks and citation omitted). 15
Even though the Party may not have a right to place its endorsement on the
ballot, Utah’s condition on printing that endorsement—“change your party rules
to better accommodate our preferred kinds of nominees or else lose your spot on
the ballot”—is not a constitutional one. And given the marked electoral
disadvantage for the party to go its own way, this condition may even be coercive.
15
Though the Party has not expressly argued the unconstitutional
conditions doctrine, the doctrine’s applicability is obvious from the record.
27
The fact that the Party has the choice of being an unregistered political party,
then, does not eliminate the law’s serious restriction of its First Amendment
freedoms. 16
At bottom, then, none of the reasons either the majority or the district court
provide rebut the conclusion that the Party bears a heavy burden under Senate Bill
54. Just because Senate Bill 54 does not engage in what the majority considers
more serious intrusions (like a ban on endorsements or forcing the Party to accept
nonmember voters in the primary) does not mean the burdens it does impose are
not substantial. As the Supreme Court said about the law in Jones, Senate Bill 54
forces the Republican Party “to adulterate [its] candidate-selection process—a
political party’s basic function.” See Jones, 530 U.S. at 568. When a State forces
a party to radically change its candidate selection procedures in the way Utah
does here, it places a severe associational burden on that party.
3. State Interests
Having concluded Senate Bill 54 severely burdens the Utah Republican
Party’s associational rights, we must determine whether Senate Bill 54 is
“narrowly tailored to serve a compelling state interest.” Clingman v. Beaver, 544
16
The district court also concluded that because the Utah Republican
Party’s bylaws do not expressly prohibit signature gathering, Senate Bill 54 did
not much burden the Party. But this is an unreasonable interpretation of the
Party’s bylaws, which provide for one means of nomination and one only: the
convention. Thus, when the Party asked candidates to comply with its written
procedures, it necessarily excluded other paths to the nomination.
28
U.S. 581, 586 (2005). “In passing judgment” on whether the state’s interests are
sufficient to justify its regulation, “the Court must not only determine the
legitimacy and strength of each of those interests; it also must consider the extent
to which those interests make it necessary to burden the plaintiff’s rights.”
Anderson v. Celebrezze, 460 U.S. 780, 789 (1983) (emphasis added). 17
In its brief, Utah barely made mention of interests that justify Senate Bill
54. In a single sentence, it listed “managing elections in a controlled manner,
increasing voter participation, and increasing access to the ballot”—almost like an
afterthought. See Aple. Br. at 34. And at oral argument, Utah simply said the
State’s purpose was to “strengthen democracy.” 18
Perhaps Utah thought that gesticulating at buzz-words such as “democracy”
and “voter participation” would insulate the sufficiency of its interests from
scrutiny. It does not. In the context of this case, Utah’s three purported interests
are insufficient, if not illegitimate. 19
17
As the following discussion makes clear, I find Senate Bill 54
unconstitutional even under the more lenient Anderson/Burdick balancing test.
18
Oral Argument at 34:10.
19
The majority cites several Supreme Court cases upholding similar state
interests. See Maj. Op. at 26. But none of those cases accepted the state interests
without an in-depth exploration of their reasonableness in the case at hand. See
Crawford v. Marion Cty. Election Bd., 553 U.S. 181, 191–97 (2008) (engaging in
in-depth analysis of the state’s proffered interests); Clingman v. Beaver, 544 U.S.
581, 593–97 (2005) (same); Timmons v. Twin Cities Area New Party, 520 U.S.
351, 364–68 (1997) (same).
29
The first in its parade of highly generalized interests—“managing elections
in a controlled manner”—is almost too nondescript an interest to analyze. Utah
has not claimed that elections were conducted in an “uncontrolled manner” before
Senate Bill 54. Nor has it explained why the law increases the “controlled
manner” of elections now. This appears instead to be a way of saying it has an
interest in election regulation in general. But the state’s power to regulate
elections “does not justify, without more, the abridgment of fundamental rights,
such as . . . the freedom of political association.” Tashjian, 479 U.S. at 217.
Utah’s second asserted interest fares worse. Not only is it insufficient; it is
likely impermissible. In Jones, the Supreme Court held that while “increasing
voter participation” is not “automatically” an illegitimate interest, courts must not
evaluate that interest “in the abstract.” 530 U.S. at 584. Instead, courts should
ask how that value is being pursued. Id. The Jones Court therefore looked
behind this generically phrased interest and found it lacking. In “the
circumstances of [that] case,” the state’s reason for thinking the law would
increase voter participation was that “more choices favored by the majority [but
not by the party] will produce more voters.” Id. at 584–85. That was “hardly a
compelling state interest,” the Court explained, “if indeed it [was] even a
legitimate one.” Id. It is one thing to protect the right to vote; it is quite another
to lecture political parties because their internal processes turn off average voters.
It is for elections to disclose the truth of that.
30
Though the state has not explained why it thinks Senate Bill 54 will
increase voter participation, there are reasons to think Utah’s asserted interest in
“increasing voter participation” suffers from the same flaw as that in Jones. As
recounted earlier, the advocacy group Count My Vote spearheaded the passage of
this legislation, and its express purpose was to change the Party’s nomination
practices so that nominees would be more representative of the majority of
general election voters. It believed “[p]arty delegates . . . do not represent the
views of average Utahns.” 20
It is uncontested that Senate Bill 54 was designed to accomplish Count My
Vote’s goals. At oral argument, Utah’s counsel admitted that Senate Bill 54 was
a “compromise” enacted to address the concerns of the Count My Vote
movement. 21 As the majority explained, “it is clear from our review of the record
20
See Count My Vote, Why Change Utah’s Election System?,
http://www.countmyvoteutah.org/facts (last visited Feb. 21, 2018); see also Count
My Vote, Press Release: Education Groups Endorse, Rally Behind Count My
Vote, http://www.countmyvoteutah.org/education-community
-endorses-rallies-behind-count-my-vote (last visited Feb. 21, 2018) (publicizing
another group’s endorsement, stating that “The majority of all Utah voters rank
education as their highest priority, but Republican delegates are more concerned
with guns, grazing, and getting the U.S. out of the United Nations”); Count My
Vote, Press Release: Utahns for Ethical Government Endorses Count My Vote,
http://www.countmyvoteutah.org/utahns-for-ethical-government-endorses-count-
my-vote (last visited Feb. 21, 2018) (publicizing another group’s endorsement,
denigrating “caucuses” as “neighbor-inflicted litmus tests, to see if someone is
sufficiently ‘right-thinking’ to be selected as a convention delegate in a
problematic caucus voting process”).
21
Oral Argument at 25:00.
31
that [Senate Bill 54] was a compromise crafted between the Utah legislature and
outside interests,” namely, County My Vote. Maj. Op. at 5. Indeed, the bill’s
sponsor, Senator Bramble, opened his proposal by discussing Count My Vote’s
efforts to “increase citizen participation”— mentioning the group’s appeals for
the “dominant party” to change its convention rules. 22 Senator Bramble further
explained that encouraging “competitive races between competing philosophies”
would increase citizen participation. 23 It is likely, then, that Utah’s purpose of
“increasing voter participation” is linked to Count My Vote’s goal of making
party nominees more representative of Utahns as a whole.
This is not a legitimate way to increase voter participation. As the Court
said in Jones, the desire to make a party’s nominees more “representative” is
“nothing more than a stark repudiation of freedom of political association: Parties
should not be free to select their own nominees because those nominees, and the
positions taken by those nominees, will not be congenial to the majority.” 530
22
Senate Day 24, 2014 53:00, http://le.utah.gov/jsp/jdisplay
/billaudio.jsp?sess=2014GS&bill=sb0054&Headers=true (last visited Feb. 22,
2018).
23
Senator Bramble also acknowledged that Count My Vote’s proposed
language had been incorporated into the bill. Senate Day 24, 2014 55:00–1:00:01,
http://le.utah.gov/jsp/jdisplay/billaudio.jsp?sess=2014GS&bill=sb0054&Headers=
true (last visited Feb. 22, 2018). He further described certain provisions as
“consistent with the original intent of the Count My Vote proponents” and
“consistent with the underpinnings” of the Count My Vote movement.” Id. A
number of other senators also mentioned Count My Vote and its purposes when
discussing the purposes of the bill. Id. at 1:00:00-1:40:00.
32
U.S. at 582. If Utahns feel they are not represented by Republican Party office
holders, they are free to vote for a different party. 24 But the solution for citizen
indifference cannot be to destabilize an existing party in the hopes of galvanizing
citizen attention. Nor can it be to force insurgent candidates upon the party, even
if they are more representative of the median voter than the candidates the party
would choose for itself. And after all, insurgency cuts both ways.
As for Utah’s third interest—providing more ways for persons to become
party candidates—it is similarly inadequate. This asserted interest is analogous to
the state’s claim in Jones that it had an important interest in allowing
nonmembers to have a voice in a party’s nomination. Id. at 583–84. The
Supreme Court rejected that interest because a “nonmember’s desire to participate
in the party’s affairs is overborne by the countervailing and legitimate right of the
party to determine its own membership qualifications.” Id. (quoting Tashjian,
479 U.S. at 215–216).
The same reasoning applies here. A party member’s desire to become a
candidate by means other than those the party has adopted is “overborne by the
countervailing and legitimate right of the party to determine its own” candidate
24
This is, in fact, already happening. See Lee Davidson, New centrist
party forms in Utah to attract disaffected Republicans, Democrats, Salt Lake City
Tribune (May, 24, 2017),
http://archive.sltrib.com/article.php?id=5317869&itype=CMSID (noting that
Republican and Democratic voters who feel disenfranchised have recently formed
a new party in Utah).
33
nomination procedures. While the state may have an interest in making it easier
for persons to earn a place as unaffiliated candidates on the general election
ballot, it does not have a strong interest in making it easier for them to become
the party’s candidates on the party’s primary ballot. 25
The district court also considered a fourth possible state interest—that
“[r]equiring a primary” allows the Lieutenant Governor to better perform his
statutory duty to “‘ensure compliance with state and federal election laws’ more
effectively than if nominee selection is left to a party-managed convention
process.” JA 1171 (quoting Utah Code Ann. § 20A-2-300.6 (2)(b)). Utah has not
even mentioned this interest on appeal, perhaps acknowledging what little
connection exists between preventing fraud and Senate Bill 54. Even if one
accepts the district court’s premise that primaries help prevent fraud, Senate Bill
54 does little to prevent fraud because it does not require a primary in every case:
25
In deciding Utah has an interest in giving Party members “writ large”
another way to gain the nomination, the majority paints party members as pitted
against a separate (and even antagonistic) group of “party bosses.” See Maj. Op.
at 23, 25 n.15. Yet there is no reason to suppose a Great Wall between the two.
Any Party member is free to become more involved in the Party’s internal
workings. If Party members want a signature-gathering route to nomination, they
can surely rally for that change to the Party’s bylaws, as is the case in many
states. And as mentioned earlier, were a cabal to truly shut out the voices of
ordinary members, members are free to quit, to form a new party, to cast their
votes elsewhere. In the long run, there is more democratic accountability for
political parties than the majority admits. The history of party presidential
nomination processes demonstrates the adaptability of parties and their
convention/delegate schemes.
34
when a qualified political party only has candidates who emerged from its
convention, the law does not require the party to participate in a primary.
To summarize, then, Utah has not shown that its “interests make it
necessary to burden the plaintiff’s rights.” See Anderson, 460 U.S. at 789. It has
waved its hands at generalized interests, and that cannot be enough. 26
4. Supreme Court Case Law
In spite of the state’s failure to present a cogent theory of its interests in
Senate Bill 54 and the extent to which the bill harms the Party’s associational
rights, the majority rests its decision on generalized dicta the Supreme Court has
repeated, but never examined, since the 1970’s. The Court has in fact never been
asked to review a state provision squarely imposing a mandatory primary on
recalcitrant political parties. Consequently, I respectfully think this reed cannot
support the weight placed upon it.
The problem lies in its inception. In 1974, in American Party of Texas v.
White, a case about alleged discrimination against minority parties—not
mandatory primaries, the Supreme Court said: “It is too plain for argument, and it
is not contested here, that the State may limit each political party to one candidate
for each office on the ballot and may insist that intraparty competition be settled
26
Though I have applied strict scrutiny, I think the foregoing shows Utah’s
interests do not meet the lesser “important interests” form of scrutiny either. See
Burdick v. Takushi, 504 U.S. 428, 434 (1992).
35
before the general election by primary election or by party convention.” 415 U.S.
767, 781 (1974). Since then, although the Supreme Court has never considered
the question presented here, it has repeated variations of this dicta. See New York
State Bd. of Elections v. Lopez Torres, 552 U.S. 196, 203 (2008) (addressing
challenge to New York’s convention system for judicial offices). As recently as
Jones, in which the Court held California’s blanket primary unconstitutional, the
Court repeated the mantra. 530 U.S. at 572. It did so even as the logic of its
holding cast substantial doubt on the sufficiency of states’ interest in mandating a
primary over a political party’s objection.
These statements suggest states can alter political parties’ nomination
processes to some extent. But while it is true we are “bound by Supreme Court
dicta almost as firmly as by the Court’s outright holdings, particularly when the
dicta is recent and not enfeebled by later statements,” Gaylor v. United States, 74
F.3d 214, 217 (10th Cir. 1996) (emphasis added), we generally do not follow
dicta that has been completely assumed and unreasoned. See Tokoph v. United
States, 774 F.3d 1300, 1303–04 (10th Cir. 2014), as amended on reh’g (Jan. 26,
2015) (“the ‘dicta’ do not appear to be of the considered sort that would compel
us to reach the suggested conclusion”); United States v. Bd. of Cty.
Commissioners of Cty. of Otero, 843 F.3d 1208, 1214 (10th Cir. 2016), cert.
denied sub nom. Bd. of Cty. Comm’rs of Otero Cty., New Mexico v. United States,
138 S. Ct. 84 (2017) (following dicta because “each statement was fully
36
considered, went to the core of the issue under review, and was the explicit basis
for the decision” (emphasis added)); see also Cent. Virginia Cmty. Coll. v. Katz,
546 U.S. 356, 363 (2006) (“For the reasons stated by Chief Justice Marshall . . .
we are not bound to follow our dicta in a prior case in which the point now at
issue was not fully debated.”).
Even more significantly, as commentators have noted, an-anything-goes
approach to primary election regulations is seriously at odds with the Supreme
Court’s internal logic in Jones. See, e.g., Nathaniel Persily, Toward a Functional
Defense of Political Autonomy, 76 N.Y.U. L. Rev. 750, 785 (2001) (explaining
that Jones follows a long line of Supreme Court cases upholding party autonomy
and “the reasoning in Jones would extend to all types of primary systems”);
Richard L. Hasen, “Too Plain for Argument?” The Uncertain Congressional
Power to Require Parties to Choose Presidential Nominees Through Direct and
Equal Primaries, 102 Nw. U. L. Rev. 2009, 2010 (2008) (noting that “cases
recognizing the parties’ rights to overrule the states on the open or closed nature
of political primaries” makes the status of this dicta “uncertain”). That is because
one of the constitutional flaws identified in Jones—the alteration of the kinds of
nominees a party chooses—is present in most primaries. See Samuel Issacharoff,
Private Parties with Public Purposes: Political Parties, Associational Freedoms,
and Partisan Competition, 101 Colum. L. Rev. 274, 274–275, 282; Pennings,
Democratizing Candidate Selection, supra, at 269.
37
I therefore doubt the Supreme Court was laying down the law for all time
in all contexts, including the intrusion mounted here by the state of Utah. At one
time, perhaps, the necessity of primaries may have seemed obvious. Primaries
were, as is well known, part of progressive reform to combat corruption-laced and
“smoke-filled” backrooms, where party bosses supposedly ruled with autocratic
quid pro quos. See Lopez Torres, 552 U.S. at 205–06; Diana Dwyre, Political
Parties and Campaign Finance: Challenges and Adaptations, in The Parties
Respond: Changes in American Parties and Campaigns 181, 185–86 (Mark D.
Brewer & L. Sandy Maisel eds., 2013). Those were times when the party
patronage system was strong, see Elrod v. Burns, 427 U.S. 347, 353 (1976)
(describing this system), when parties more or less controlled candidates
publicity, Diana Owen, Political Parties and the Media: The Parties Respond to
Technological Innovation, in The Parties Respond, supra, at 237, 240, and when
parties held the pocketbook, Dwyre, supra, at 181–185.
But that power is a gone-by era. The advent of the civil service system
destroyed the party spoils system. Elrod, 427 U.S. at 353. From broadcast
television in the mid-twentieth century to social media today, the changed media
environment has wrested candidate publicity from parties’ hands. Marc J.
Hetherington & Bruce A. Larson, Parties, Politics, and Public Policy in America
102–104, 252 (11th ed. 2010). And parties have lost their grip on a candidate’s
cash. Dwyre, supra, at 206–07. As one commentator has put it, those “great
38
urban machines of generations past have practically disappeared.” Hetherington,
supra, at 251. And while the “classic functions” of parties “are recruitment,
nomination, and campaigning . . . today’s parties no longer dominate any of these
activities.” Id. at 292. Indeed, many of these functions have been farmed out to
SuperPacs only loosely affiliated with political parties. See Hetherington, supra,
at 26, 37, 110, 136–37, 141.
At the same time, experience has called into question the Supreme Court’s
premise that primaries—the main democratizing device for nominations in use
today—are “an ideal forum in which to resolve” intraparty “feuds.” See Eu, 489
U.S. at 227. See generally Stephen E. Gottlieb, Rebuilding the Right of
Association: The Right to Hold a Convention as a Test Case, 11 Hofstra L. Rev.
191 (1982) (arguing primaries can generate disorder and undermine First
Amendment rights of parties). Primaries tend to weaken party cohesiveness, alter
a party’s candidate mix, and change a party’s political messages. Pennings,
Democratizing Candidate Selection, supra, at 269, 271; Hetherington, supra, at
250; Issacharoff, Private Parties with Public Purposes, supra, at 274. Primaries
have not, moreover, lived up to their hype of equalizing the playing field among
candidates and increasing voter engagement. Evidence suggests primaries do
almost nothing to weaken incumbent advantage. Hetherington, supra, at 79–80.
And as for increasing voter participation in the nomination process, primaries
have been a dud. Turnout for primary elections is consistently dismal. Id.
39
This new context matters. The whole premise of the Anderson/Burdick test
is to balance the associational burdens placed on political parties with a state’s
interest in maintaining “fair and honest” elections. See Burdick, 504 U.S. at 433
(quoting Storer v. Brown, 415 U.S. 724, 730 (1974)). The much-reduced power
parties wield in today’s world suggests the burden of interference with their
ability to nominate the candidate of their choice is greater and the state’s interest
in interfering is far lower than it was at an earlier time.
When circumstances have changed so drastically, it is not enough to rely on
the fact that the Supreme Court once assumed the First Amendment balance
clearly favored the state. In these as-applied challenges, we must evaluate the
associational burden in light of facts on the ground. That is how we typically
approach election law-related challenges and other First Amendment cases.
When aspiring candidates challenge the requirements they face to be listed
on the ballot, for example, we do not look at whether a variant of that isolated
provision was held constitutional in 1950, 1990, or even last year. Rather, “to
assess realistically whether the law imposes excessively burdensome requirements
. . . it is necessary to know other critical facts.” See Storer v. Brown, 415 U.S.
724, 738 (1974). We thus look to whether the entire election mechanism, in its
“totality,” unduly impairs a person’s ability to become a candidate. Arutunoff v.
Oklahoma State Election Bd., 687 F.2d 1375, 1379 (10th Cir. 1982). The
Supreme Court has looked, for instance, to whether it is feasible, on the ground,
40
for candidates to collect the number of signatures a state requires for a place on
the ballot. See American Party of Tex. v. White, 415 U.S. 767, 786–87 (1974)
(“Given that time span, signatures would have to be obtained only at . . . four
signatures per day for each 100 canvassers . . . Hard work and sacrifice by
dedicated volunteers are the lifeblood of any political organization. Constitutional
adjudication and common sense are not at war with each other . . . .”).
Similarly, when evaluating time, place, and manner restrictions on speech,
we do not focus solely on the prohibition at issue. We look at whether there are
“ample alternative channels for communication.” Ward v. Rock Against Racism,
491 U.S. 781, 791 (1989) (quoting Clark v. Community for Creative
Non-Violence, 468 U.S. 288, 293 (1984)). Simply put, we assess how
burdensome the regulation really is in the real world.
Consider the Supreme Court’s explicit holding in a facial challenge to
Indiana’s voter identification law. Crawford v. Marion Cty. Election Bd., 553
U.S. 181, 185–89 (2008). The Court found that Indiana had sufficiently alleged
state interests in ballot integrity that outweighed competing burdens on the right
to vote. Id. at 191–97, 202–203. The Court held the “‘precise interests’ advanced
by the State [were] therefore sufficient to defeat petitioners’ facial challenge to”
the law. Id. at 203. Yet despite this clear statement, when confronted with as-
41
applied challenges, lower courts have had no problem reassessing the severity of
the burden on voters based on real world evidence. 27 The same is true here.
And attention to facts on the ground is especially important when we are
dealing with the associational rights of political parties. Parties are an
indispensable part of our democracy, having come into being almost immediately
after the creation of the republic. Jones, 530 U.S. at 574. “Representative
democracy in any populous unit of governance is unimaginable” without parties.
Id. Indeed, no large democracy has been able to operate without them. Nicol C.
Rae, The Diminishing Oddness of American Political Parties, in The Parties
Respond, supra, at 25, 25. Parties perform the essential task of aggregating
disparate interests into digestible options on the ballot. By doing so they provide
an important heuristic for voters and reduce costs for legislators to organize
around policies. Persily, The Legal Status of Political Parties, supra, at 787.
27
See N. Carolina State Conference of NAACP v. McCrory, 831 F.3d 204,
214, 232 (4th Cir. 2016), cert. denied sub nom. North Carolina v. N. Carolina
State Conference of NAACP, 137 S. Ct. 1399 (2017) (holding voter ID law
unconstitutional in light of the record in that case); Veasey v. Perry, 71 F. Supp.
3d 627, 679, 707 (S.D. Tex. 2014), vacated in part on other grounds, Veasey v.
Abbott, 796 F.3d 487 (5th Cir. 2015), on reh’g en banc, 830 F.3d 216 (5th Cir.
2016), and aff’d in part, vacated in part, rev’d in part sub nom. Veasey v. Abbott,
830 F.3d 216 (5th Cir. 2016) (holding voter ID law unconstitutional because there
were “substantial differences in the evidentiary record” making Crawford’s
holding inapplicable); Frank v. Walker, 17 F. Supp. 3d 837, 845, 863 (E.D. Wis.),
rev'd, 768 F.3d 744 (7th Cir. 2014) (the district court held voter ID law
unconstitutional because the record was different from that in Crawford but was
reversed on the grounds that the record in Crawford was too similar).
42
And by brokering between the varied interests in the coalition, parties make it
possible for a large number of interests—especially minorities—to have a voice.
See id.
As Justice O’Connor explained in her concurrence in Davis v. Bandemer,
“[t]here can be little doubt that the emergence of a strong and stable two-party
system in this country has contributed enormously to sound and effective
government.” 478 U.S. 109, 144–45 (1986). “The preservation and health of our
political institutions, state and federal, depends to no small extent on the
continued vitality of our two-party system, which permits both stability and
measured change.” Id.
In light of the important function political parties serve in our Republic, we
should be wary of burdens on their associational rights at a time when they are, in
many respects, already weakening. In most states, it is true, the major political
parties still favor the primary election. Persily, Toward a Functional Defense of
Political Autonomy, supra, at 786. But the case for the constitutionality of
forcing political parties to engage in selection-by-primary against their will is,
today, far more suspect. Indeed, mandatory primaries are anomalous among the
world’s democracies, and have not, despite the oft-repeated myth, resulted in
what most reformers intended. 28 Under these circumstances, we should not rely
28
See Richard Pildes, Two Myths About the Unruly American Primary
System, Washington Post (May 25, 2016),
43
on conclusory assertions. If we permit the kind of associational degradation
Senate Bill 54 effects on parties, we may find instead of “stability,” populism,
and instead of “measured change,” extremism.
I would therefore hold Senate Bill 54’s primary provisions unconstitutional.
C. The Signature-Gathering Provision
The Utah Republican Party also claims the number of signatures Senate Bill
54 requires qualified political party members to collect to become candidates for
the State House or Senate are unconstitutionally burdensome. Because the
majority holds the rest of Senate Bill 54 is constitutional, it also decides this
question. I agree with the majority that, if the rest of the scheme is constitutional,
the quantities of signatures required are not unconstitutional.
The Utah Republican Party argues the percentage of eligible signers a
candidate must obtain signatures from for State House and Senate far exceeds the
five-percent “safe harbor” under Jenness v. Fortson, 403 U.S. 431, 442 (1971).
See also Storer, 415 U.S. at 739. The number of signatures required—1,000 for
State House, 2,000 for State Senate—range from 6% to 57% of the eligible
signers in each district. 29
https://www.washingtonpost.com/news/monkey-cage/wp/2016/05/25/two-myths-a
bout-the-unruly-american-primary-system/?utm_term=.b06a00d53dc6.
29
These high figures are the result of the first lawsuit. Senate Bill 54 used
to allow unaffiliated voters to sign candidacy petitions. When the district court
held that provision unconstitutional, the Utah Republican Party chose only to
allow its own members to sign petitions, drastically reducing the number of
44
But these percentages are not the end of our analysis. The Supreme Court’s
“ballot access cases . . . focus on the degree to which the challenged restrictions
operate as a mechanism to exclude certain classes of candidates from the electoral
process.” Clements v. Fashing, 457 U.S. 957, 964 (1982). “The inquiry is
whether the challenged restriction unfairly or unnecessarily burdens the
availability of political opportunity.” Id. (internal quotation marks and citation
omitted).
Accordingly, we look at the “the practical effect of the election laws of a
given state, viewed in their totality.” Arutunoff v. Oklahoma State Election Bd.,
687 F.2d 1375, 1379 (10th Cir. 1982). This “totality” approach is in agreement
with the Second Circuit’s approach in LaRouche v. Kezer, 990 F.2d 36 (2d Cir.
1993). When there is a constitutional method of becoming a candidate on the
ballot, an additional method—even if difficult to use—is not unconstitutional
unless it is irrational. See id. at 38–39 & n.1.
Senate Bill 54 provides two paths for a qualified political party member to
obtain a place on the primary ballot. One is the party convention. The other is
signature-gathering. Because all agree that the convention method is
constitutional on its own, the signature-gathering route only increases the ways a
eligible signers in each district. This does not affect the outcome one way or the
other. See Illinois State Bd. of Elections v. Socialist Workers Party, 440 U.S.
173, 187 (1979) (“Historical accident, without more, cannot constitute a
compelling state interest.”).
45
candidate can earn a slot on the ballot. Accordingly, even if it is difficult to use,
it does not unfairly burden political opportunity.
Contrary to the Utah Republican Party’s contention, there is also no
indication that the numbers chosen are irrational. The state might think that one
or two thousand supporters is in itself a “significant modicum of support”
meriting a candidate’s placement on the ballot, regardless of the percentage of
eligible signers it represents. See Jenness, 403 U.S. at 442. Or the state may
want to incentivize use of the party convention for State House and Senate
candidacies. Either way, the signature-gathering requirements do not violate the
Constitution. 30
III. Conclusion
Senate Bill 54 attempts to change the substance of the Utah Republican
Party under the guise of the state’s authority to regulate electoral procedure. Like
California in Jones, Utah had the “intended outcome” of “changing the [Party’s]
message” and “favor[ing] nominees with ‘moderate’ positions.” See Jones, 530
U.S. at 580–82. There is “no heavier burden on a political party’s associational
freedom.” Id.
30
The foregoing analysis does not, however, foreclose an as-applied equal
protection or due process challenge by an aspiring candidate disadvantaged by
these signature-gathering requirements.
46
In contrast to these heavy burdens, the State’s asserted interests are vague
and even impermissible. Utah alleged no evidence of corruption or fraud. And
this is not a case in which the Party has disenfranchised some protected segment
of the citizenry in its processes. See, e.g., Smith v. Allwright, 321 U.S. 649, 650
(1944). To the contrary, the Party uses a convention system that gathers delegates
from around the state who are chosen at caucus meetings open to all of the public
without any qualification other than Party membership.
The background of this case should caution us as to the perils of allowing
states to impose procedural changes of this magnitude on unwilling political
parties. After the Utah Republican Party repeatedly rebuffed requests to change
its nomination procedures, the unsuccessful reformers simply went to the state
legislature and changed the Party’s procedures by force of law. Allowing this
collateral attack on party rules to be a run-of-the-mill part of the political process
invites leaders “to enlist and rely on state law as the primary vehicle for party
governance, largely relieving these leaders of any need to secure the support or
acquiescence of party members to a chosen course.” See Ellen D. Katz, Barack
Obama, Margarita Lopez Torres, and the Path to Nomination, 8 Election L. J.
369, 379 (2009).
Perhaps it would be wise for the Utah Republican Party to change its
nomination procedures. And maybe it will. Parties are not impervious to change.
Change happens to parties constantly, sometimes from within and sometimes from
47
without. But such change is not for legislatures to impose. At least not unless
they have clearly spelled out, compelling interests.
For the foregoing reasons, I respectfully dissent with respect to the Either
or Both and mandatory primary scheme and concur with respect to the signature-
gathering provision.
48