Defendants' Brief in Opposition To Plaintiff's Amended Motion For Preliminary Injunction

Case 2:14-cv-00876-DN-DBP Document 68 Filed 03/31/15 Page 1 of 67
PARKER DOUGLAS (8924)

Utah Federal Solicitor
DAVID N. WOLF (6688)
THOMAS D. ROBERTS (2773)
KYLE J. KAISER (13924)
Assistant Utah Attorneys General
OFFICE OF THE UTAH ATTORNEY GENERAL
350 North State Street, Ste. 230
P.O. Box 142320
Salt Lake City, Utah 84114-2320
Telephone: (801) 538-9600
Facsimile: (801) 538-1121
E-mail: pdouglas@utah.gov
E-mail: dnwolf@utah.gov
E-mail: thomroberts@utah.gov
E-mail: kkaiser@utah.gov
Counsel for Defendants
IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF UTAH, CENTRAL DIVISION
UTAH REPUBLICAN PARTY,

Plaintiff,
CONSTITUTION PARTY OF UTAH, a
registered political party of Utah,
Plaintiff and Intervenor,
DEFENDANTS BRIEF IN OPPOSITION

TO PLAINTIFFS AMENDED MOTION
FOR PRELIMINARY INJUNCTION
v.
GARY R. HERBERT, in his Official Capacity
as Governor of Utah, and SPENCER J. COX,
in his Official Capacity as Lieutenant Governor
of Utah,
Defendants.
Case No. 2:14-cv-00876-DN

Chief Judge David Nuffer
TABLE OF CONTENTS
INTRODUCTION ....i
RELEVANT STATUTORY AND FACTUAL BACKGROUND...v
A.
The Statute at Issue and Its Provisions . v
B.
Facts Related to the Partys Constitutional Claims .. i
STANDARD OF
REVIEW..1Error! Bookmark not
defined.
ARGUMENT3
I.
LIKELIHOOD OF SUCCESS ON THE MERITS3

A.
The Party Presents an As-Applied Challenge 3
B.
The Partys Repeated Citations to Legislative History Should Be Disregarded... 4
C.
The States Constitutionally Authorized, Broad Power to Regulate Elections

Should Be Considerered.6
D.
The Party Has No First Amendment Speech Right on Utahs Ballots.. 7
E.
Utah Has the Right to Regulate Elections

1.
...15
First Amendment Election Law Challenges Are Subject to a Sliding

Standard of Review...........16
2.
SB54 Is Constititional Because It Does Not Impose a Severe Burden,

and Is Supported by Important Governmental Interests ...19
a.
As a Matter of Fact, SB54 Does Not Impose a Severe Burden on

the Party .....19
b.
As a Matter of Law, SB54 Imposes No Severe Burden. ....Error!
Bookmark not defined.4
ii
c.
SB54 Serves Important Regulatory Interests .....Error!
Bookmark not defined.
i. SB54 Ensures the Election Processs Integrity and Reliability. ...Error!
ii. SB54 Alleviates the Current Burdens on the Constitutional Rights of
Party Candidates and Rank-and-File Members ....Error!
SB54 Is Constitutional Even if Reviewed Under Strict Scrutiny. ....41
3.
SB 54 Furthers Compelling State Interests ...41
a.
i. SB54 Increases Primarly Election Ballot Access for Party

Members Who Would Attempt to Serve the Public .....Error!
Bookmark not defined.1
ii. SB54 Improves Voting Opportunities for Rank and File Party
Members ....Error!
iii.
SB54 Improves Voter Participation...43
b.
SB54 Advances State Interests in a Narrowly Tailored Manner . ..Error!
F. The Partys Unconstitutional Choice or Unconstitutional Condition
Argument is WithoutMerit
.............48
II.
IRREPARABLE HARM...50
III.
BALANCE OF HARMS .53
IV.
PUBLIC POLICY 54
CONCLUSION ..54
iii
Defendants Utah Governor R. Gary Herbert and Utah Lieutenant Governor Spencer J.
Cox (Utah), through undersigned counsel of record, oppose Plaintiffs Amended Motion for
Preliminary Injunctive Relief. 1 Plaintiff Utah Republican Party (the Party) is an
unincorporated association established under Title 20A of the Utah Code. It is a registered
political party, as defined by Utah election law predating 2015. Intervenor-Plaintiff
Constitutional Party of Utah is a registered political party of Utah and part of the National
Constitution Party. The Party has moved for a preliminary injunction stay[ing] the enforcement
and/or implementation of Senate Bill 54 (SB54).2 SB54 was signed into law on March 10,
2014, and is now part of the Utah Election Code. For the reasons articulated below, the Party
has failed to establish that they are entitled to preliminary injunctive relief, and this Court should
deny the Motion.
INTRODUCTION
This case involves the basic issue of whether Utah may use its legitimate and
constitutionally sanctioned police powers to regulate the manner in which Utah elections
proceed. SB was duly passed the Utah Legislature, which represents the will of the citizens of
Utah, and is designed to improve civic involvement, participation, and interest in political
matters. When all is said and done, the broad question for the Court is: Is it constitutional for the
Peoples representatives to tailor the manner in which elections are carried out in order to try to
provide more choice for how parties may place candidates on the ballot. The manner in which
SB54 achieved its worthy objectives is carefully circumscribed to allow political parties to
1
2
(Doc. 13.)
(Pl.s Mot. (doc. 13) at i.).
iv
remain unaffiliated with other citizens, and guarantee that only members of its party participate
in the candidate selection process Because the statute does not interfere with the parties free
speech or free association rights, the answer to the question is yes.
The Party is not likely to succeed on the merits on their First Amendment speech or
association claims. Regarding the Partys alleged speech rights, case law is clear that the Party
has no First Amendment right to speak on a ballot. Regarding the Partys association rights,
SB54 does not impose a severe burden because election law principles. 3
Similarly the Party cannot prove irreparable harm. The Party asks the court to assume,
rather than presume, irreparable harm, a standard not borne out by Tenth Circuit case law. And
the facts to date show that the Party in fact would not be irreparably harmed if SB54 were
implemented, even during the pendency of the lawsuit.
Finally, the balance of the equities and public policy oppose the entry of a preliminary
injunction.
Accordingly, the Partys motion should be denied.
RELEVANT STATUTORY AND FACTUAL BACKGROUND
A.
1.
The Statute at Issue and Its Provisions
SB54, enacted in the 2014 General Session, modified the Utah Election Code as it relates
to the nomination of candidates, primary and general elections, and ballots.4 The sections of the
Utah incorporates by reference its arguments made in the State Defendants Motion for Partial
Judgment on the Pleadings and Memorandum of Law in Support (doc. 64) regarding the Partys
trademark claim, and for those reasons, urges the Court to deny the Partys preliminary
injunction as to that claim.
4
See S.B. 54, 2014 Gen. Sess., (amending portions of Utah Code tit.20A, chs., 1, 5, 6, 9, and
enacting portions of Utah Code tit. 20A chs. 1, 9.) A copy of the session law is attached as
Exhibit 1 to the Republican Partys Amended Motion for PreliminaryInjunction (doc. 13-1).
v
Utah Code that are affected by SB54 are: 20A-1-102, 20A-1-501, 20A-5-101, 20A-6-301
through 305, 20A-9-101m 20A-9-202, 20A-9-403, and 20A-9-701.
2.
The provisions of SB 54 retained Utahs caucus and convention system and
supplemented the process for selecting political nominees by allowing a candidate to be

nominated to the primary ballot when they meet threshold requirements for voter support.
3.
SB 54 allows for two types of political parties, Registered Political Parties (RPP) and
Qualified Political Parties (QPP). 5

4.
Utah law before the enactment of SB54 did not directly address whether candidates for
office who want to be on the primary ballot or become candidates for office of a political party
must be members of that political party.
5.
However, the Lieutenant Governors implementation of SB54 did not contemplate or
allow for a non-party member to be a candidate and on a primary ballot for a political party, and
this limitation in favor of political party affiliation is present whether a party is a QPP or RPP.
6.
Senate Bill 207 (SB 207) was signed into law on March 27, 2015. SB 207 was in the
2015 General Session and further modified Utahs Election Code.

7.
SB 207 provides that [b]efore filing a declaration of candidacy for election to any office,
a person shall state:

(i) the registered political party of which that person is a member;
(ii) or that the person is not a member of a registered political party.
SB 207 further provides that an individual may not:
See Exh. 6, for a flowchart visual of the statutory provisions addressed here.
vi
(iii) filed a declaration of candidacy for a registered political party of which the
individual is not a member, except to the extent that the registered political party
permits otherwise in the registered political partys bylaws. 6
8.
Accordingly, Utahs Election Code allows that each party to govern whether candidates
running in party primaries must be members of the party.

9.
Prior to SB 54, political parties could designate who could vote in their primary.
However, any unaffiliated voter could affiliate with a party by signing a voter registration form
and would then be entitled to vote in that partys primary. 7
10.
That individual could then immediately thereafter unaffiliate from the party, and go back
to being an unaffiliated voter.8

Registered Political Parties
11.
A RPP is an organization of voters that: participated in the last regular general election
and in at least one of the last two regular general elections, polled a total vote for any of its
candidates for any office equal to 2% or more of the total votes cast for all candidates for the
United States House of Representatives in the same regular general election; or has complied
with the petition and organizing procedures of Utah Code title 20A, chapter8.9
12.
To qualify to nominate candidates for an upcoming election, an RPP must comply with
Utah Code Section 20-9-403. This means an RPP must declare is intent to participate in the next
primary election, or declare that the party chooses not to have candidates on the ballot at the next
Senate Bill 54 (2014) Frequently Asked Questions, (doc. 65 p.3.).

Utah Code 20A-2-107.
8
Utah Code 20A-2-107.5.
9
Utah Code 20A-8-101(4).
7
vii
general election.10 This is done by filing a statement with the Lt. Governor no later than 5pm on
November 15 of the preceding odd-numbered year if they are a continuing party.
13.
If an RPP chooses to participate in the election nomination process, it must also identify
one or more registered parties whose members may vote for its candidates and whether or not
unaffiliated voters may vote for their candidates.11
14.
Under SB 54, a candidate for elective office may choose to run for office by
demonstrating they have a reasonable amount of party voters support by completing a

nomination petition process and obtaining certification.12 (Doc. 13-1 at lines 1172-1226, 12671334.)
15.
For RPPs who choose not to qualify as QPPs, the qualification for candidacy of the party
leaders preferred candidates remain the same. The RPP candidate must complete the petition
process and obtain certification. However, a candidate running for an RPPs nomination must be
a member of the registered political party to appear as the candidate in the primary election.
Registered political parties only have one track for appearing on the primary ballot, and that is
through a signature nomination petition process. Utah Code 20A-9-403(3). This position is
reiterated in the guidance given by the Office of Lieutenant Governor.13
Qualified Political Parties
16.
A QPP is a registered political party that: a) allows voters who have not registered with a
political party (unaffiliated) to vote for their partys candidates in a primary election; b)
permits a delegate of its party to vote on a candidate nomination in the partys convention
10
Utah Code 20A-9-403(2)(a).

Utah Code 20A-9-403(1)(d)(ii).
12
Utah Code 20A-9-403(3)(b)-(4)(a)(i); Utah Code 20A-9-405.
13
Senate Bill 54 (2014) Frequently Asked Questions, (doc. 65 p.3.).
11
viii
remotely, or provides a procedure for designating an alternative delegate; c) does not hold the
partys convention before April 1 of an even year; and d) permits members of its own party to
seek nomination by either the partys convention process, or by collecting signatures. 14
17.
Under the QPP provisions there are two tracks for a person to become a candidate for
placement on the primary ballotthe convention nomination track and the signature gathering
nomination track. Under both of those tracks the statute limits candidates to members of the
party.15
18.
On the convention nomination track, the statute provides that the section sets forth the
requirements for a member of a qualified political party who is seeking the nomination of a
qualified political party. 16
The remaining provisions of that section refer only to a member of
a qualified political party.

19.
The signature gathering nomination track for the QPP, is similarly limited to members of
the party. The statute provides that the section set forth the requirements for a member of a
qualified political party who is seeking nomination of the qualified political party under that
signature gathering track.17 Again, as with a convention track, the provision goes on to only talk
about a member of a qualified political party who may be a candidate.18
Main Statutory Provisions Regarding Affiliation
20.
A RPP has a choice as to whether it wants to participate in the primary election process
and have its candidates on the general election ballot showing their affiliation with the party.
14
Utah Code 20A-9-101(12)(a)-(d).

Utah Code 20A-9-201(1), 407(1), -408(1).
16
17
Utah Code 20A-9-408(1).
18
Id.
15
ix
The Utah Election Code thus allows the RPP to decide whether it wants to have names of its
candidates for elective office featured with party affiliation on the ballot, indicating that the
registered political party views the candidates as their candidates. Utah Code 20A-9403(1)(b) (emphasis added).
21.
Regarding primary elections, SB54 provides that a participating RPP determines who
may vote for the registered political parties candidates, again indicating that the candidates on
the ballot are the parties candidates. 19 Consequently, the statutory provisions provide that the
candidates are the partys candidate, indicating membership or at least qualification to be the
partys candidate.20
22.
The statutory provisions also reference the issue from the candidates perspective. The
statute provides, in pertinent part, that candidates ... receiving the highest number of votes cast
for each office at the regular primary election are nominated by their registered political party for
that office.21 The statute requires that the candidate be nominated by [his or her] registered
political party, i.e. that the candidate is a member of or belongs to the party, so that the party is
the candidates party.22
23.
SB54 and SB 207 read together indicate that, from the partys perspective, the candidate
is of or from the registered political party and, from the perspective of the candidate, that the
party is the candidates political party. Thus, although the provisions for a registered political
party do not explicitly state as do the provisions for a qualified political party, candidates of a
registered political party are limited to members of the registered political party.
19
Utah Code 20A-9-403(2)(a)(ii).

Id.
21
Utah Code 20A-9-403(5)(a)
22
Id.
20
24.
Each election officer shall ensure that:(a) each person nominated by any registered
political party under Subsection 20A-9-202(4) or Subsection 20A-9-403(5), and no other person,
is placed on the ballot: (i) under the registered political party's name and emblem, if any; or (ii)
under the title of the registered political party as designated by them in their certificates of
nomination or petition, or, if none is designated, then under some suitable title; (b) the names of
all unaffiliated candidates that qualify as required in Title 20A, Chapter 9, Part 5, Candidates not
Affiliated with a Party, are placed on the ballot ( 20A-6-301(2)) (doc 13-1 at lines 555-564).
B.
25.
Facts Related to the Partys Constitutional Claims
Republican Party Chairman Mr. James Evans stated that the Party could adjust its
schedule to earlier dates to decide how the Party would respond to and implement provisions of
the statute, thereby making the timing issues identified by the Party moot.23
26.
The Partys Constitution further provides that counties must follow the dictates of the
Partys Constitution with respect to modifications of local bylaws. 24

27.
Most of the actions required by the statute of the Office of the Lieutenant Governor are
largely ministerial. The county parties and Officer of the Lieutenant Governor have no
involvement with certifying candidates for the ballot except for the new requirement that the
county party submit officers names and contact information. 25
28.
Also any certification requirement is met if the information or certification is signed by
the liaison, indicating that the certification trumps any internal party requirements. Since the
23
Evans depo, p. 144, l. 19 to p. 146, l. 1-3.

Republican Party of Utah Const., Art. VII. (doc. 13-3, p. 31).
25
Indeed all communication from a party to the Office of the Lieutenant Governor or county
clerk is required to go through the one liaison designated by the state party, Utah Code 20A-8402(1), including any certification by the party, 20A-8-403.
24
xi
Party controls the state liaison position, it is the Party, not the Office of the Lieutenant Governor
or county clerk, who is designated by the Party.26
29.
The Party may not expel any member. Anyone who registers to vote with an affiliation to
the Republican Party is a member of the Party and entitled to vote and participate in Republican
elections and meetings. 27
30.
According to Mr. Evans there is no litmus test or required belief or position in order to
be a Republican.28
31.
Mr. Evans further indicated that the only penalty or sanction for not filling out the
candidate statement regarding fealty to the platform was that the delegates (and one may infer
potentially the voters) would be informed of the lack of filing, but such a deficit did not exclude
keeping a Republican from being a candidate.29
32.
Similarly, Mr. Evans could recall no instance of any Republican delegate being removed
from a caucus meeting was not started with a prayer, pledge of allegiance, or the reading of the
platform. 30
STANDARD OF REVIEW
It is well settled that a preliminary injunction is an extraordinary remedy, and that it
should not be issued unless the movants right to relief is clear and unequivocal.31 Before a
26

Evans dep. p. 152, l. 20-25 to p. 154, l. 4-6.
28
Evans dep., p. 37, l. 23-25 to p. 38, l. 1-25.
29
Evans dep. p. 53, l. 22-25 to p. 54, l. 1-5; p. 100, l.13-18.
30
Evans, dep., p. 152, l. 20-25 to p. 154, l. 4-6.
31
Heideman v. South Salt Lake City, 348 F3d 1182, 1188 (10th Cir. 2003) (affirming denial of
motion for preliminary injunction brought by nude dancing artists on First Amendment free
expression challenge to city ordinance requiring g-strings and pasties) (quoting Kikumura v.
Hurley, 242 F.3d 950, 955 (10th Cir. 2001)).
27
preliminary injunction may be entered, pursuant to Federal Rule of Civil Procedure 65, the
moving party must establish that:
(1) [the movant] will suffer irreparable injury unless the injunction issue;
(2) the threatened injury . . . outweighs whatever damage the proposed
injunction may cause the opposing party; (3) the injunction, if issued,
would not be adverse to the public interest; and (4) there is a substantial
likelihood [of the moving partys success] on the merits.32
[W]here . . . a preliminary injunction seeks to stay governmental action taken in the public
interest pursuant to a statutory or regulatory scheme no arguably lesser standards for the
issuance of a preliminary injunction are applicable. Id.33 In this case, therefore, the Party must
meet its burden of showing that each of the four required elements necessary for a
preliminary injunction to issue weight clearly and unequivocally in their favor.34 The Party
cannot meet this burden, and the Court should deny its request for preliminary injunctive
relief.
The Party has argued that a relaxed standard should apply due to the nature of the
Partys claims and its assumption that the equities portions of the preliminary injunction
analysis entitle it to a relaxed standard on the merits. Based on the clear Tenth Circuit
authorities above, the Court should decline the Partys suggestion. As discussed specifically in
Utahs treatment of the irreparable injury factor, the Party additionally has not made a showing
that entitles it to the relaxed standard. As such, this Court must determine whether the Party
has met its showing clearly and unequivocally on each factor.
32
Heideman, 348 F.3d at 1188 (quoting Resolution Trust Corp. v. Cruce, 972 F.2d 1195, 1198
(10th Cir. 1992)).
33
Id. (emphasis added) (quoting Sweeney v. Bane, 996 F.2d 1384, 1388 (2d Cir. 1993)).
34
Id.; accord Kikumura, 242 F.3d at 955.
2
ARGUMENT
SB54 is constitutional. The Party is not likely to succeed on the merits that SB54 is
violative of the Partys speech or association rights. And SB54 does not subject the Party to an
unconstitutional choice. Furthermore, there is no irreparable harm if SB54 is not allowed to be
enjoinedthe Partys representative admitted as much in his deposition. The balance of equities
and the public interest opposes the Partys injunction.
I.
LIKELIHOOD OF SUCCESS ON THE MERITS

The Party is not substantially likely to succeed on the merits of their constitutional
challenge to SB54. The Party disclaims any facial challenge and maintains its suit against SB4
as-applied, and the Court should consider the relevant standards when reviewing the Parts likely
success, because as-applied challenges come with their own evidentiary burdens. As detailed
below, with respect to evidence, in conducting the analysis, the Court should ignore the Partys
repeated, and unnecessary, recitation of legislative history, but should give considerable weight
to Utahs constitutional right to conduct elections.
With the correct framework in place, it is clear that the Partys challenges are not likely
to succeed. The Party does not have a First Amendment speech right on the ballot. Therefore,
the Partys speech claims dissolve. The Partys association rights are not unconstitutionally
infringed by SB54. The Party cannot clearly and unequivocally prove likelihood of success on
the merits.
A. The Party Presents an As-Applied Challenge.
Though the Party insists that its challenge is an as-applied challenge and we take them at
their word SB54.35 While [a] facial challenge considers the restriction's application to all
conceivable parties, an as-applied challenge tests the application of that restriction to the
facts of a plaintiff's concrete case.36 In Washington State Grange, the Court noted that had the
plaintiff in that facial challenge to Washingtons modified blanket primary system brought an
as-applied challenge instead, factual issues such as alleged voter confusion, the plaintiff would
have to develop an evidentiary record against which to assess their assertions that voters will
be confused.37 As such, for each of the alleged factually based issues, the Party bears the
burden of production or it has not demonstrated a likelihood of success on the merits.
B. The Partys Repeated Citations to Legislative History Should Be Disregarded.
At the outset it is useful to determine exactly what is at issue and what is not, both
factually and legally: The constitutionality of SB54 is at issue; any legislative history is not.
The Party spends much of its time asserting that SB54 was designed was enacted to impose on
the Party a regimen of election law rules that substitutes the judgment of the state for the
judgment of the Party in how it should select candidates.38 But the Partys speculation and
argument regarding what Utah politicians, lobbyist or citizens said, may or may not have said,
thought or may have thought, about SB54 is irrelevant to the analysis of the laws
constitutionality is only relevant if SB54 has ambiguous language. The Party has not argued that
35
Compl. 110.
Colo. Right To Life Comm. v. Coffman, 498 F.3d 1137, 1146 (10th Cir. 2007).
37
Wash. State Grange v. Wash. State Republican Party, 552 U.S.442, 455 (2008) (citing and
adopting Timmonsv. Twin Cities Area New Party, 520 U.S. 351, 37576 (Stevens J., dissenting)
(reasoning that judgments based on imaginative theoretical sources of voter confusion and
entirely hypothetical outcomes should be rejected)).
38
(Pl.s Mot. (doc. 13) at ii.); (Pl.s Supp. Brief in Support of Mot. for Prelim. Inj. (doc. 65) at 6
8.) This line of argumentation is the reddest of herrings. As more fully described below, the
relevant constitutional inquiry is related to what the statute does, not in what lawmakers or others
might have thought of it, before or after its passage.
36
the statute is ambiguous, and the meaning of the statute can be determined by reading is its plain
text, which is facially neutral and generally applicable to all political parties in Utah. The Party
cannot credibly maintain otherwise.
The Supreme Court long ago made clear: The law as passed is the will of the majority
of both houses, and the only mode in which that will is spoken is in the act itself. . . .39 The
Court has also been equally and consistently clear about the fact that statements by legislators,
let alone by proponents of bills, do not have the force of law, for the Constitution is quite
explicit about the procedure that Congress must follow in legislating. 40 For this reason, the
Supreme Court has been insistent in focusing on the language of the statute itself, often
admonishing that a historical analysis provides less guidance to a statutes meaning than its
final text.41 In analyzing a statute, we begin by examining the text . . . not by
psychoanalyzing those who enacted it . . . .42 Justice Jackson was pointedly insightful in
addressing this topic, as he warned that interpreting a statute through reconstructing
Congresss supposed intent carried with it the danger of causing the judiciary to overstep its
constitutional authority and engage in de facto legislation:
I should concur in this result more readily if the Court could reach it by analysis
of the statute instead of by psychoanalysis of Congress. When we decide
statements of . . . what Congress probably had in mind, we must put ourselves in
the place of a majority of Congressmen and act according to the impression we
think this history should have made on them. Never having been a Congressman,
I am handicapped in that weird endeavor. That process seems to me not the
interpretation of a statute but creation of a statute.43
39
Aldridge v. Williams, 44 U.S. (3 How.) 9, 24 (1845) (emphasis added).

American Hosp. Assn v. NLRB, 499 U.S. 606, 615 (1991).
41
Hubbard v. United States, 514 U.S. 695, 703 (1995).
42
Carter v. United States, 530 U.S. 255, 271 (2000).
43
United States v. Public Utils. Commn of Cal., 345 U.S. 295, 319 (1953) (Jackson, J.
concurring).
40
For this reason, this Courts inquiry focuses on an analysis of the textual product of [the
Legislatures] efforts, not on speculation as to the internal the internal thought processes of its
Members[,] and for these reasons the Partys interest in who said what to whom and when about
SB54 is irrelevant to the constitutional analysis here. 44
As a result, the Facts cited in the Partys Motion in numbered paragraphs 1 through 5
are largely irrelevant to the constitutional questions before the Court, and the Court should not
consider who said what to whom regarding SB54s passage and codification into Utah law.45
C.
The States Constitutionally Authorized, Broad Power to Regulate

Elections Should Be Considered.
Utah, as all the several states, possesses a broad power delegated to it by the United
States Constitution to regulate the time, place and manner of elections, 46 and this power is
matched by state control over the election process for state offices. 47 The plain language of the
United States Constitution provides that Utah has among its Police Powers the affirmative
constitutional grant of authority to prescribe the manner of holding elections, subject to other
constitutional limitations. Thus, the Partys the analytical model directly before the Court is
exactly backwards. The presumption is in favor of the SB54s validity based upon the express
constitutional grant of authority, not the other way around.
Second, the Party spends many pages in its briefing listing the alleged reasons for the
statutes passage, citing at length the supposed nefarious reasons why Utah lawmakers passed
the statute, as the Party cites snippets of legislative history to support its theory that the only
44
Id. at 272.
Pl.s Mot. at iv-viii.
46
U.S. CONST. art. I 4, cl. 1.
47
Wash. State Grange, 552 U.S. at 451 (citations and internal quotation marks omitted).
45
reason the statute was passed was to invade the Partys internal structure. The Party has gone
so far as to suggest that this material is dispositive of the issue of the statutes constitutionality.
There is no support for this proposition and, as discussed above, standard canons of both
statutory construction and judicial interpretation demonstrate that absent ambiguity in the
provisions, such material is irrelevant to the task of statutory analysis.
Finally, as an initial matter, the Court should also note the following before considering
how to conclude an analysis of the Partys constitutional claims. First, the Party claims to slip
between identifying rights of the Party as they are related to or articulated by: 1) the beliefs of
its Chairman, Mr. James Evans; 2) decisions made by the Partys central committee; 3) the
positions inherent in the Partys constitution and bylaws; and 4) the general party membership.
Counsel will identify where this slippage of terms is particularly relevant to and dispositive of
the Courts likelihood of success of the merits analysis.
D. The Party Has No First Amendment Speech Right on Utahs Ballots.
The Partys position in large measure rests on the assumption that it has a constitutional
right to be on, and speak on the state-funded ballot and express itself on a Utah ballot. Its
Complaint styles this right as a political right of the Party to communicate its endorsement on
the ballot[.]48 The relevant case law demonstrates that there is no such right under the
Constitution.
The Supreme Court has described simply a political partys as well as a candidates
limited constitutional rights with respect to a state funded election ballot. In New York State
48
Pl.s Comp. (doc. 2) 63, 97, 104, 115.

7
Board of Elections v. Lopez Torres,49 the Court recognized the idea that a political partys
responsibilities in the election process may authorize the state to directly regulate, limit, or
specify how the party shall act and qualify in order to be on the ballot. This is relevant even
though this deals with just the selection process and not necessarily the right to be on the
ballotwhich will be addressed here as well. The Lopez Torres Court stated:
A political party has a First Amendment right to limit is 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 as done here by giving certain parties the right to have
their candidates appear with party endorsement on the general-election ballot.
Then, for example, the partys racially discriminatory action may become state
action that violates the Fifteenth Amendment And then also the State acquires a
legitimate governmental interest in ensuring the fairness of the partys
nominating process, enabling it to prescribe what that process must be. We have,
for example, considered it to be too plain for argument that a State may
prescribe party use of primaries or conventions to select nominees who appear on
the general-election ballot. That prescriptive power is not without limits.50
The associated case law also rejects the Partys premises that it has a constitutionally
protected choice in which process it wants to use, where each process allows for its candidates
to be on the ballot but only some of them officially as the candidate of the party. Though these
issues and analysis are not circumscribed and separate in the case law, as some of the same
basic doctrinal developments arise from different factual postures, the Supreme Court and other
court cases demonstrate together that a party: 1) does not have an unfettered right to have its
candidate on a state funded ballot; 2) does not have separate right to have its candidate on the
49
552 U.S. 196 (2008).

Id. at 20203 (citing and quoting Democratic Party of the United States v. Wisconsin, ex rel.
v. LaFollette, 450 U.S. 107, 122, (1981); Cal. Democratic Party v. Jones, 530 U.S. 567, 574575, (2000); Am. Party of Tex. v. White, 415 U.S. 676, 781 (1974)) (emphasis added).
50
ballot as the candidate of the party; and 3) that the inability of the Party to have its chosen
candidate on the ballot is not, of necessity, a violation of the Partys First Amendment rights.
The lack of First Amendment expressive activity and a right to political speech in
connection with the actual ballot is highlighted in seminal case Burdick v. Takushi.51 That case
upheld the Hawaiian denial of any right to cast a write-in vote which would be counted.
Plaintiff claimed that he had a right to cast a protest vote and that limiting his voting to those
candidates who are on the ballot make him espouse positions (candidates) he did not support.
The Supreme Court rejected the plaintiffs contention holding that the ballot is not a forum for
political speech but rather a mechanism to elect candidates:
[T]he function of the election process is to winnow out and finally reject all but
the chosen candidates, not to provide a means of giving vent to short-range
political goals, pique, or personal quarrel[s].
Attributing to elections a more generalized expressive function would
undermine the ability of States to operate elections fairly and efficiently. 52
The notion that the First Amendment rights do not apply in connection with the states
creation of a ballot has been referenced in a long line of cases. For instance, Nevada Commn on
Ethics v. Carrigan,53 involved ethical restrictions on legislators voting where they had a conflict
of interest. The Court upheld the requirement of disallowing votes when there is personal
conflict of interest, stating:
Even if it were true that the vote itself could express deeply held and highly
unpopular views, the argument would still miss the mark. This Court has
rejected the notion that the First Amendment confers a right to use governmental
mechanics to convey a message. For example, in Timmons v. Twin Cities Area
New Party, we upheld a States prohibition on multiple-party or fusion
51
504 U.S. 428 (1992).

Id. at 438, (quoting Storer v. Brown, 415 U.S. 724, 730, 735 (1974))
53
564 U.S. ___, 131 S. Ct. 2343 (2011).
52
candidates for elected office against a First Amendment challenge. We admitted

that a States ban on a persons appearing on the ballot as the candidate of more
than one party might prevent a party from using the ballot to communicate to the
public it supports a particular candidate who is already another partys candidate,
but we nonetheless were unpersuaded ... by the partys contention that it has a
right to use the ballot itself to send a particularized message. In like manner, a
legislator has no right to use official powers for expressive purposes.54
Thus, political parties do not have a constitutional right to be on a ballot or to have their
candidates be placed on the ballot as a candidate of that party, along with a party emblem.
First Amendment rights with respect to making a statement on the ballot are extremely limited,
as a candidate, voter, or party does not have the right to use the ballot for political speech. On
the other hand, the state also does not have unfettered freedom to limit or condition access to the
ballot. However, relevant case law does not support the Partys legal contentions.
First, a partys choice of nominating methods eliminates First Amendment concerns. In
Miller v. Brown,55 the Fourth Circuit Court of Appeals addressed Virginias somewhat complex
ballot system. The system allowed nominations of candidates by a primary conducted and
funded by the state where any person, regardless of party affiliation, could vote. However,
parties could also get on the ballot by other means, including party convention, mass meetings
and caucuses, or a party-run primary election operated and funded by the party, not the state.
The Virginia process also had a somewhat unique provision that an incumbent office holder
could dictate which process the party would use concerning his or her reelection. In the
challenged election, the incumbent chose the open primary.
The Miller court denied the facial challenge because of the various methods a party could
54
Id. at ___, 131 S. Ct. at 2351 (citing and quoting Timmons, 520 U.S. 351, 36263; Burdick, 504
U.S. at 438).
55
503 F.3d 360 (4th Cir. 2007).
10
use to have its candidates on the ballot. The court stated:

Virginia allows political parties to nominate candidates not only by state-run
primary but also by other methods controlled and funded by the party. And, by
merely choosing any of these other options, a party is free to limit its candidate
selection process to voters who share its political views. Thus, the forced
association that the Supreme Court has condemned, simply is not present here.56
The Miller court rejected the same argument that the Party advances here, that because
Virginia law allows political parties to select their candidates by primary, a party must have a
constitutional right to restrict the voters who participate in that primary. It observed: a party has
no constitutional right even to select its nominees by primary.57
The court further noted that there was no constitutional requirement that Virginia hold a
primary as part of its election process as:
[A]gain, a party is free to select from various methods of nomination in which it
can exclude voters who do not share its views including a closed primary
conducted and funded by the party. It is only when the party chooses to hold a
primary operated and funded by the state that it must allow all voters to
participate.58
The court referenced that the Supreme Court decisions holding a mandatory primary was
unconstitutional involved statutes where there were not several options for candidate
nomination, finally concluding:
In sum, because Virginia makes available to political parties multiple options for
restricting their candidate selection process to individuals of their choosing, the
refusal by the state to fund and operate a closed primary does not burden parties
right of association.59
56
Id. at 367 (citing Cal. Democratic Party v. Jones, 530 U.S. 567, 581 (2000)).
Id. at 36768 (citing Am. Party of Tex. v. White, 415 U.S. 767, 781 (1974) (holding that states
may dictate the method by which political parties select their nominees)).
58
Id. at 368 (emphasis added).
59
Id. at 36768.
57
11
As in Miller, so here, as SB54 provides three options among the QPP or RPP route to a
Utah ballot. And if the Party chooses to take none of those options, it may still have a candidate
on the ballot, and though that candidate would not be identified by party on the ballot, the Party
would still have all its rights to expression off of the ballot to express its preferred endorsement
of candidate. The statute does not unconstitutionally impact the Partys rights as it can exclude
and express all it likes, but, as recognized by the cases cited in this section, the Party does not
have the right to force Utah to accept its preferred method of selection , exclusion and expression
on a Utah funded ballot. As the constitutional provisions above show, Utah may prescribe the
manner of holding elections. 60
The Court earlier enunciated similar governing principles in Timmons v. Twin Cities
Area New Party,61 which involved a challenge to Minnesotas prohibition on fusion candidates.
In that case, Minnesota law prohibited a candidate from being on the ballot as a candidate for
more than one party. In Timmons one party filed suit challenging the limitation as it had chosen
as its candidate someone who was also a candidate for another party. The Supreme Court denied
the constitutional challenge, ruling that the inability of the party (the New Party) to have its
chosen candidate on the ballot as its candidate was not a denial of their First Amendment rights
to associate and form political parties.
Timmons provides a clear analysis of Burdick and the standard for review of election
casesthat it is a function of how severe the burden is on the asserted rights as to the level of
review (which standard will not be here, as is at length below). The passage addresses the issue
60
61
U.S. CONST. art. I 4, cl. 1;Washington State Grange, 552 U.S. at 451.
520 U.S. 351 (1996).
12
of the claimed right to be on the ballot. The Court began its analysis:
The New Partys claim that it has a right to select its own candidate is
uncontroversial, so far as it goes. That is, the New Party, and not someone else,
has the right to select the New Partys standard bearer. It does not follow,
though, that a party is absolutely entitled to have its nominee appear on the ballot
as that partys candidate. A particular candidate might be ineligible for office,
unwilling to serve, or, as here, another partys candidate. That a particular
individual may not appear on the ballot as a particular partys candidate does not
severely burden that partys association rights.62
The Timmons Court then went on to discuss some of the claims regarding the partys
asserted rights to communicate its choice of nominees, to act as a party in support of its
candidates ideas, and to endorse its candidates, especially at the supposed critical source of
the ballot. The Court rejected those claims as constitutional rights of the party and its
observations at length are particularly instructive for this Courts considerations of the claims in
the instant case.
It is true that Minnesotas fusion ban prevents the New Party from using the ballot
to communicate to the public that it supports a particular candidate who is already
another partys candidate .. . . We are unpersuaded, however, by the Partys
contention that is has a right to use the ballot itself to send a particularized
message, to its candidate and to the voters, about the nature of its support for the
candidate. Ballots serve primarily to elect candidates, not as fora for political
expression. Like all parties in Minnesota, the New Party is able to use the
ballot to communicate information about itself and its candidate to the voters, so
along as that candidate is not already someone elses candidate. The Party retains
great latitude in its ability to communicate ideas to voters and candidates through
its participation in the campaign, and Party members may campaign for, endorse,
and vote for their preferred candidate even if he is listed on the ballot as another
62
Timmons, 520 U.S. at 59899 (citing and quoting. Cousins v. Wigoda, 419 U.S. 477 (1975)
(holding that a party, not a State, has a right to decide who will be States delegates at party
convention)); see Burdick, 504 U.S. at 440, n.10 (It seems to us that limiting the choice of
candidates to those who have compiled with state election law requirements is the prototypical
example of a regulation that, while it affects the right to vote, is eminently reasonable.))
(emphasis added).
13
partys candidate.63
The Court further elaborated that the lack of a parties candidate being on the ballot as its
candidate did not affect the ability of a party to endorse candidates and to engage in its First
Amendment rights. The Court stated: Whether the Party still wants to endorse a candidate
who, because of the fusion ban, will not appear on the ballot as the Partys candidate, is up to
the Party. 64 and further: The New Party remains free to endorse whom it likes, to ally itself
with others, to nominate candidates for office, and to spread its message to all who will listen. 65
Such is also the case here. SB54 does have requirements to follow were the Party to
desire to have its candidate on the ballot as the Partys endorsed Republican candidate.
However, as addressed in this line of cases, the Party does not have a First Amendment right to
express those preferences on a Utah ballot and it is not unconstitutional per se at all for Utah to
require a party to choose among certain paths to the ballot should the Party desire to express
itself on a Utah state funded ballot. For this reason, and those discussed below, the Partys
unconstitutional choice or unconstitutional condition protestations are without basis in law.
A party does not have a First Amendment right to express itself on a Utah funded ballot and, as
discussed below, Utah may prescribe the manner in which all parties must proceed if they would
have their members listed on the ballot as party candidates.
63
Id. at 36263 (citing and quoting Resps. Br, at 22-23; Burdick, 504 U.S. at 438; id. at 445
(Kennedy, J., dissenting);Anderson v. Celebrezze, 460 U.S. 780, 788 (1983) (An election
campaign is an effective platform for the expression of views on the issue of the day); Ill. Bd. of
Elections v. Socialist Workers Party, 440 U.S. 173, 186, (1979) (An election campaign is a
means of disseminating ideas).) (emphasis added). (An election campaign is a means of
disseminating ideas).) (emphasis added).
64
Id. at 360.
65
Id. at 361 (citing as a comparison cf. Eu v. San Francisco Cnty. Democratic Cent. Comm., 489
U.S. 214, 233).
14
E.
Utah Has the Right to Regulate Elections
Utah like all the several states possesses under a grant of the United States Constitution
the broad power to prescribe the Times, Places and Manner of holding Elections for Senators
and Representatives,66, and this power is matched by state control over the election process
for state offices.67 This is particularly true where the State gives the party a role in the
election process ... by giving certain parties the right to have their candidates appear with party
endorsement on the general election ballot.68
To be sure, Utahs expansive power is, however, not absolute69 and does not
extinguish the States responsibility to observe the limits established by the First Amendment
66
U.S. Const. Art. I 4, cl. 1.

Washington State Grange, 552 U.S. at 451 (citations and internal quotation marks omitted);
accord Tashjian v. Republican Party of Conn., 479 U.S. 208, 217 (1986). See also Smith v.
Allwright, 321 U.S. 649, 657 (1944) (asserting that a state is free to conduct her elections and
limit her electorate as she may deem wise, save only as her action may be affected by the
prohibitions of the United States Constitution or in conflict with powers delegated to and
exercised by the National Government.).
68
New York State Bd. of Elections v. Lopez Torres, 552 U.S. 196, 203 (2008);see also Allwright,
321 U.S. 649, 657 (1944) (When primaries become a part of the machinery for choosing
officials, state and national, as they have here, the same tests to determine the character of
discrimination or abridgement should be applied to the primary as are applied to the general
election.); Storer v. Brown, 415 U.S. 724, 730 (1974) (declaring 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.); Burdick, 504 U.S.
at 433 (1992) (Common sense, as well as constitutional law, compels the conclusion that
government must play an active role in structuring elections.).
69
Washington State Grange, 552 U.S. at 451; see also Jones, 530 U.S. at 567 (noting that
[s]tates play a major role in structuring and monitoring the primary election process, but the
processes by which political parties select their nominees are not wholly public affairs that States
may regulate freely.).
67
15
rights of the States citizens.70 Most notably, state election laws and ballot-access rules, as
argued by the Party here, may potentially affect a political partys associational rights under the
First and Fourteenth Amendments.71 However, this does not mean that SB54 must be subject to
strict scrutiny, even if the law does have some effect on the Partys associational right. Rather,
the challenge to SB54 must be evaluated on a sliding scale based on the burden on the affected
partys constitutional rights. After describing the scale below, and applying the sliding scale to
SB54, the analysis demonstrates that the Party is not likely to succeed on the merits of their
constitutional association claims.
1.
First Amendment Election Law Challenges Are Subject to a Sliding

Standard of Review.
Election law constitutes a hybrid area of constitutional law, where the constitutional
rights of the states are balanced against the associational and, at times, speech rights of
candidates, parties and party member. 72 State regulation in the area is presumed, as it is
enumerated in the Constitution itself, and strict scrutiny in the area is not required. As the
Supreme Court stated in Clements v. Fashing: Far from recognizing candidacy as
fundamental right, we have held that the existence of barriers to a candidates access to the
70
Tashjian, 479 U.S. 208, 217 (1986); see also Williams v. Rhodes, 393 U.S. 23, 29 (1968)
(mentioning that election regulations may not be exercised in a way that violatesspecific
provisions of the Constitution.)
71
Washington State Grange, 552 U.S. 442, 451 (2008); Anderson v. Celebrezze, 460 U.S. 780,
788 (1983) (stating that an election law provision whether it governs the registration and
qualifications of voters, the selection and eligibility of candidates, or the voting process itself,
inevitably affects-at least to some degree-the individuals right to vote and his right to associate
with others for political ends.). See generally, Lauren Hancock, The Life of the Party:
Analyzing Political Parties First Amendment Associational Rights When the Primary Election
Process is Construed along a Continuum, 88 MINN. L. REV. 159 (2003).
72
See, e.g., ERWIN CHEMERINSKY, CONSTITUTION LAW: PRINCIPLES AND POLICIES, VOTING
10.8, 903, 925 (4th ed. 2001).
16
ballot does not of itself compel close scrutiny. 73

Consequently, the Supreme Court has recognized that states must enact regulations
regarding elections, ballots, and voting in order for elections to occur: [A]s 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 process.74 Regulation of
elections will, of necessity, burden and impact the participants in the process. Every election
law
whether it governs the registration and qualification of voters, the selection and
eligibility of candidates, or the voting process itself, inevitably affects at least to
some degree the individuals right to vote and his right to associate with others
for political ends.75
Therefore, the Supreme Court recognized that even though First Amendment rights may
be affected by voting or ballot regulations, it would be improper to subject every regulation to
strict scrutiny, requiring it to be narrowly tailored to advance a compelling state interest. This
is because such strict scrutiny would tie the hands of States seeking to assure that elections are
operated equitably and efficiently. 76 Rather, the Supreme Court recognized that a more
flexible standard should apply:
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 plaintiffs rights. 77
73
457 U.S. 957, 963 (1982).

Storer and Brown, 415 U.S. 724, 730 (1974).
75
Anderson v. Celebreeze, 460 U.S. 780, 788 (1983).
76
Burdick v. Takushi, 504 U.S. 428, 433 (1992).
77
Id. at 434 (internal quotations omitted).
74
17
The amount of burdening that the regulation impinges the asserted constitutional rights
will determine the level of scrutiny to be applied:
Under this standard, the rigorousness of our inquiry into the propriety of a state
election law depends upon the extent to which a challenged regulation burdens the
First and Fourteenth Amendment rights. Thus, as we have recognized when those
were subjected to severe restrictions, the regulation must be narrowly drawn to
advance a State interest of compelling importance. But when a state election law
provision imposes only reasonable, non-discriminatory restrictions upon the
First and Fourteenth Amendment rights of voters, the States important
regulatory interests are generally sufficient to justify the restrictions. 78
In this case, the Party in part claims that his First Amendment rights are being restricted
by Utahs election statutes. Therefore, the Court must first identify the magnitude and character
of the claimed restrictions on Plaintiffs First Amendment rights and weigh those interests
against the regulatory interests of the State in conducting meaningful elections as it is
constitutionally entitled to do. Specifically, the Court must first determine the extent of the
burden that the law imposes on a political party. If the burden is severe, the court would then
strike the law unless it advances a compelling state interest in a narrowly tailored manner.79
78
Id. (citing and quoting Norman v. Reed, 502 U.S. 279, 289, (1992); Anderson, 460 U.S. at
788).
79
Washington State Grange, 552 U.S. at 451 (quoting Clingman, 544 U.S. 581, 586-87 (2005)
(Election regulations that impose a severe burden on associational rights are subject to strict
scrutiny, and we uphold them only if they are narrowly tailored to serve a compelling state
interest.); Timmons, 520 U.S. at 358 (Regulations imposing severe burdens on plaintiffs'
rights must be narrowly tailored and advance a compelling state interest.); Burdick v. Takushi,
504 U.S. 428, 434 (1992) (Thus, as we have recognized when those rights are subjected to
severe restrictions, the regulation must be narrowly drawn to advance a state interest of
compelling importance. 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.) (citing
Norman v. Reed, 502 U.S. 279, 289 (1992)); Hagelin for President Comm. of Kansas v. Graves,
25 F.3d 956, 959 (10th Cir. 1994) (When a ballot access law severely restricts First and
Fourteenth Amendment rights, it must be narrowly drawn to advance a state interest of
compelling importance.).
18
If the law imposes a lesser burden, however, the court would uphold the proposal so long as it is
justified by merely important regulatory interests.80
Given the State of Utahs broad authority to prescribe election and nomination processes,
SB54 is constitutional. It does not impose a severe burden on political parties as a matter of
fact, and as a matter of law. It also serves important regulatory interests. And even if this
Court were to conclude that it did impose a severe burden, the statute nevertheless advances
compelling state interests in a narrowly tailored manner.
2.
SB54 Is Constititional Because It Does Not Impose a Severe Burden,

and Is Supported by Important Governmental Interests.
SB54s provisions are non-discriminatory and reasonable. The statute does not
discriminate with respect to its provisions, which apply equally to all political parties.
The statutes provisions merely foster important and compelling governmental interest, as
the next section discuss the scaling or weighing interests the Court uses to evaluate these
issues as the relative burden of the regulation, or in extreme cases, its severity, are
balanced with either important regulatory interests when strict scrutiny is, as here, not
appropriate, as well as compelling state interests, which Utah also has here.
a.
As a Matter of Fact, SB54 Does Not Impose a Severe Burden

on the Party
SB54 is constitutional under the U.S. Supreme Courts established analytical framework
because it would not impose a severe burden on political parties and would serve important
80
Timmons, 520 U.S. at 358.

19
regulatory interests.81 The provisions of SB54 do not impose any severe burdens. An overview
of the relation of SB54s provisions to the Partys stated concerns.
The Parties primary compliant about SB54 is that it impermissibly force[s] the political
parties to adulterate their candidate-selection processthe basic basic function of a political
party,by opening it up to persons wholly unaffiliated with the party.82 Nothing of the sort is
required by SB54.
Notably, should the Party maintain its desire to have its candidate chosen by its members,
it can do so by becoming an RPP. Under both the RPP or QPP processes, the candidate must be
a member of the party for whom he or she seeks nomination. As shown in the flow chart
attached,83 the requirements under the RPP track requires only that a candidate needs to get
requisite number of signatures from party members and then submit them to filing officer. Once
a candidate does this, they are eligible to be on the primary election ballot which the Party can
keep closed to all but party members. Therefore, there is a track plainly and simply identified by
SB54 that does not require the Party to adulterate their candidate selection process . . . by
opening it up to persons wholly unaffiliated with the party. 84 Here, the Party misreads the
statutory by ignoring the plain options available to the Party.
Moreover, SB54 does not preclude a convention or caucus system in addition should the
Party desire it. If the Party determines that caucuses and/or conventions an important part of
81
Clingman v. Beaver, 544 U.S. 581, 586-87 (2005) (quoting Timmons, 520 U.S. at 358 (1997)
(Regulations that impose severe burdens on associational rights must be narrowly tailored to
serve a compelling state interest. However, when regulations impose lesser burdens, a State's
important regulatory interests will usually be enough to justify reasonable, nondiscriminatory
restrictions.) (internal citations omitted).
82
Pl.s Mot at 18 (quoting Jones, 530 U.S. at 581.
83
Senate Bill 54 (2014) Frequently Asked Questions (Doc. # 65-5 at.3)
84
Id.
20
their association, they are free to hold their convention or caucus, and publicly endorse in any
manner the Party sees fit. The Party may also chose to publicly endorse, financially support, and
actively campaign for any the candidates. Under an RPP track, or the QPP track, the Party does
not pay for the primary election. That cost is borne by Utah. Nor does the Party have to pay for
signature gathering or filing mechanisms. Nor must the Party have its primary under the RPP
open to non-members or unaffiliated voters, as the RPP track allows the party to keep that
primary closed to its members. The Party may protest that having a primary under such
conditions is burdensome, but it is difficult to imagine that they could do so without being
disingenuous regarding their commitment to associative rights with respect to all of their
members who would be the only members interested enough to actually vote in an election.
A primary under the RRP process may have more than one candidate, but the candidate
will be a member of the Utah Republican Party and the Party can elect to keep the primary under
the RPP process closed to all but Party members. Further, and perhaps more dear to the Partys
interests, the Party can still hold caucuses and conventions, and the Party can state publicly that
due to the outcome of those associational processes hampered not at all by SB54 that the
candidate who emerges from the convention is the Partys preferred candidate in the primary. If
the Party takes those steps and another Utah Republican candidate is chosen in the primary, it
would be done only by the actions of Utah Republican Party members who did not support the
member endorsed by the caucus convention system.
The RPP process provides that only a Republican candidate will come through as
nominee on the general election ballot. The RPP process allows the Party to close the primary to
only Utah Republicans, and allows for the Party to continue using caucuses or conventions. The
21
RPP process allows the Party. Given the unfettered discretion available to the Party, the process
does not impost a severe burden.
As the RPP process provides no severe burden, the Courts analysis should end here. Yet
it is also equally clear that the Party has ample ways under SB34 to convey its message regarding
its preferred candidates to the voting public. If the Party chose either of the two QPP tracks, the
rights which concern the Party are not necessarily unconstitutionally burdened. The Party can
always choose to be an RPP or opt out of any of the SB54 tracks completely. It would then also
have the option of running its traditionally chosen candidate as an Unaffiliated Candidate that the
Party might then tell the voters the Unaffiliated Candidate is actually the chosen candidate of the
Utah Republican Party.
The issue of unaffiliated voters voting in a primary only comes up if a political party has
chosen to be a QPP. A registered political party designates who may vote in the primary. 85
However, voting by an unaffiliated in a qualified political partys primary is not significantly
different than the voting that was allowed in primaries prior SB 54s adoption.
Prior to SB 54, political parties could designate who could vote in their primary.
However, any unaffiliated voter could affiliate with a party by signing a voter registration form
and would then be entitled to vote in that partys primary. 86 That individual could then
immediately thereafter unaffiliate from the party, and go back to being an unaffiliated voter. 87
Common sense dictates that of public officials, clergy, and members of the judiciary, among
other citizens, who may feel completely dedicated to a given party and its platform, but
85
Utah Code 20A-9-403 (2)(a)(ii).

87
Utah Code 20A-2-107.5.
86
22
nevertheless for professional and/or privacy reasons do not otherwise wish to maintain
continuous public affiliation take advantage of this provision of Utah law. Further, the right to
associate and disassociate comprises an element of those individuals right to association and
expression.
Under SB54, if an unaffiliated voter wanted to vote in a qualified political partys
primary, they would have to identify to the Clerk which political party primary they wish to vote
in, thereby associating themselves with that political party. This notice would be required
because the Clerk must determine if the voter is authorized to vote in the primary. 88 This public
act of identifying with the party to vote in the primary, along with the public record of having
voted in that partys primary, is a similar act of public association and affiliation with a party by
voting in its primary as under pre-SB54 law.
Courts have recognized that voting in the primary is similar to if not indistinguishable
from being affiliated with a party and voting. In Democratic Party of Hawaii v. Nago,89 the
court discussed the difference between open primary, where anyone can vote, and a closed
primary, where only party members may vote. The court stated:
And, in this particular sense, such a closed primary may be virtually
indistinguishable from Hawaiis open primary where voters can affiliate with a
party on the day of the primary. In fact, Jones distinguished an open primary
system from Californias blanket primary system. 90
The court went on, quoting a footnote from Jones, which in turn quoted a footnote from Justice
Powells dissent in Democratic Party of the United States v. Wisconsin ex rel. LaFollette: In
88
See Utah Code 20A-9-101(12) (defining qualified political parties as those parties
allowing unaffiliated voters to vote in a primary, but not requiring persons affiliated with a
different party to vote in the qualified political partys primary).
89
982 F. Supp. 2d 1166 (D. Haw. 2013), appeal filed (Dec. 13, 2013)
90
Id. at 1178.
23
this sense, the blanket primary also may be constitutionally distinct from the open primaryin
which the voter is limited to one partys ballot. [T]he act of voting in the Democratic primary
fairly can be described as an act of affiliation with the Democratic Party The situation might
be different in those States with blanket primaries i.e., those where voters are allowed to
participate in the primaries of more than one party on a single occasion, selecting the primary
they wish to vote in with respect to each individual elective office.91
Thus, the public association with a qualified political party by voting in its primary is not
significantly different than, or any less in the control of the political party, than the pre-SB54
ability of an unaffiliated voter to affiliate on primary election day and unaffiliate the following
day. SB54 cannot impose a severe burden when pre-SB54 law was no less burdensome.
b.
As a Matter of Law, SB54 Imposes No Severe Burden.
A political party has an implicit right of association under the First and Fourteenth
Amendments.92 However, SB54 does not impermissibly infringe on the Partys members rights
of association. [F]reedom to associate for the common advancement of political beliefs
necessarily presupposes the freedom to identify the people who constitute the association.93
And [i]n no area is the political associations right to exclude more important than in its
candidate-selection process, as that process often determines the partys positions on
91
Id. (quoting Jones, 530 U.S. at 577 (quoting LaFollette, 450 U.S. at 130 n.2 (Powell, J.,
dissenting))).
92
See, e.g., Timmons, 520 U.S. at 357 (The First Amendment protects the rights of citizens to
association and to form political parties for the advancement of common political goals and
ideas.).
93
La Follette, 450 U.S. at 122.
24
significant public policy issues, and it is the nominee who is the partys ambassador charged with
winning the general electorate over to its views. 94
The Partys position throughout their pleadings seems to assume that almost any Utah
election laws affecting the nominee-selection process without a political partys consent would
impose a severe burden on the partys associational rights. This assertion finds no support in
the law. As noted above, a partys associational rights are circumscribed when the State
gives the party a role in the election process ... by giving certain parties the right to have their
candidates appear with party endorsement on the general election ballot. 95 In those instances,
the State acquires a legitimate governmental interest in ensuring the fairness of the partys
nominating process, enabling it to prescribe what that process must be. 96 Courts,97 including
94
Jones, 530 U.S. at 568; see also Tashjian, 479 U.S. at 216 (the selection of a nominee is the
crucial juncture at which the appeal to common principles may be translated into concerted
action and hence to political power in the community).
95
Lopez Torres, 552 U.S. at 203; see also United States v. Classic, 313 U.S. 299, 318 (1941)
(remarking that primaries have become an integral part of the states electoral machinery). A
party is not entitled to have its nominees appear as party candidates on the general-election
ballot. Timmons, 520 U.S. at 359 (noting that although a party had a right to select its own
candidate, it did not follow that a party is absolutely entitled to have its nominee appear on the
ballot as that partys candidate.). See generally Wash. State Grange, 552 U.S. 442 (2008)
(upholding election scheme where political parties did not have ability to have a nominee appear
on a general-election ballot).
96
Lopez Torres, 552 U.S. at 203.
97
See e.g., State v. Frear, 125 N.W. 961, 967 (Wis. 1910) (upholding a mandatory primary law
in the nations first such case); Wagner v. Gray, 74 So. 2d 89, 93 (Fla. 1954) (upholding primary
law, stating: it does not follow that because the Constitution has conferred the right to vote in a
general election, the Legislature is powerless to impose regulations in a primary law that will
regulate party nominations.).
25
Utahs highest state court,98 have upheld state rules that affect a partys nominee-selection
process. Indeed, the Supreme Court has repeatedly considered it too plain for argument that a
State may prescribe party use of primaries or conventions to select nominees who appear on the
general-election ballot.99 The Court has expressly endorsed the use of a primary election: [a]
primary is not hostile to intraparty feuds; rather it is an ideal forum in which to resolve them. 100
With respect to the Partys desire to have their endorsement of a candidate on the ballot,
should the Party wish to have its candidates noted as part of the Party on the ballot, they need
only choose one of three methods by which a QPP or RPP may get on the ballot. Should they
not choose to avail themselves of the statutes paths to the ballot, they may express, endorse, and
otherwise present their chosen candidate to the public. Though it may be the Partys preference
to dictate to the rest of Utah how elections should take place, the fact remains that Utah, not the
Party, has the constitutionally delegated authority to prescribe the manner in which elections take
place. Because the Party has no inherent constitutional right to express itself on a state funded
ballot, the Party is free to keep its own counsel as to how to proceed.
98
Anderson v. Cook, 130 P.2d 278, 285 (1942) (stating that Utahs constitution cannot be
construed to deny the legislature the power to provide regulations, machinery and organization
for exercising the elective franchise.).
99
Lopez Torres, 552 U.S. at 203 (quoting with approval White, 415 U.S. at 781 (1974)); see also
Jones, 530 U.S. at 572 (quoting with approval White, 415 U.S. at 781 (stating that it is too
plain for argument, 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.)); Clingman, 544 U.S. at 593 (concluding that it is beyond question that States may,
and inevitably must, enact reasonable regulations of parties, elections, and ballots to reduce
election- and campaign-related disorder. (quoting with approval Timmons, 520 U.S. at 358)).
100
Eu v. San Francisco County Democratic Central Committee, 489 U.S. 214, 227 (1989)
(emphasis added); see also Burdick, 504 U.S. at 433 (observing that the Court has repeatedly
upheld reasonable, politically neutral regulations that have the effect of channeling expressive
activity at the polls.).
26
The Party therefore cannot credibly argue that SB54 imposes a severe burden merely
by affecting nominee selection without party consent. Any claim that SB54 imposes a severe
burden simply by affecting the nominee-selection process without party consent ignores a settled
reality of political processes across the country. For instance, states began to prescribe party
use of primaries over a century ago, in 1903. 101 Today, [n]early every State in the Nation now
mandates that political parties select their candidates for national or statewide office by means of
primary elections.102 If SB54s burden was somehow severe, all state-administered
nomination processes would be vulnerable. As the Supreme Court in Clingman said:
To deem ordinary and widespread burdens like these severe would subject
virtually every electoral regulation to strict scrutiny, hamper the ability of States
to run efficient and equitable elections, and compel courts to rewrite state
electoral codes.103
The Partys all-encompassing view of associational rights are not supported in law, and
established jurisprudence and on-the-ground facts foreclose political parties from taking this
stance in modern litigation. Put differently, a party that asserts the existence of a severe
burden must do more than point out the general presence of a law; the Party must identify a laws
particular elements that inflict severe burdens.
The scope of SB54s particular elements are limited: a candidate may appear as a partys
nominee on the general-election ballot only if she wins the partys primary election, and a route
to the primary-election ballot through submission of verified nomination petitions. Courts have
101
MALCOLM E. JEWELL, PARTIES AND PRIMARIES: NOMINATING STATE GOVERNORS 6 (1984).

Clingman, 544 U.S. at 599 (OConnor, J., concurring).
103
Id. at 593; see also Burdick, 504 U.S. at 433 (asserting that to subject every voting regulation
to strict scrutiny and to require that the regulation be narrowly tailored to advance a compelling
state interest, as petitioner suggests, would tie the hands of States seeking to assure that elections
are operated equitably and efficiently.).
102
27
been specific about which types of rules present severe burdens. Judging from these
precedents, SB54 does not inflict a severe burden because: (a) parties may decide whether or
not to have their nominees designated by choosing one of three routes to the primary ballot and,
after the primary, they will appear as the partys candidate; (b) they may elect not to participate
in any route and on the general election ballot; (c) parties deciding to proceed in such a manner
could select nominees without any state restriction; and (d) parties maintain the ability to endorse
candidates as they please, either by electing to pursue one of three ways to ballot designation as
party candidate or opting out and having their candidate appear as unaffiliated and then proceed
to advertise or demonstrate the partys support for the candidate in any lawful manner. None of
these alternatives pose a severe burden, and, under the sliding scale analysis describe above in
the Standard of Review portion of this section.
The nature of what constitutes a Severe burden under election law has been most
prominently discussed in three Supreme Court cases considering state restrictions on which
voters could participate in a political partys primary election.
First, in California Democratic Party v. Jones, the Court held that a so-called blanket
primary imposed a severe burden on a partys right of association. Under Californias
blanket primary, each voter received a ballot that listed every candidate, regardless of party
affiliation, and the voter could then select candidates of his choice. The candidate of each party
receiving the most votes advanced to the general election as that partys nominee.104 The Court
was concerned with the blanket primarys potential for facilitating party raiding, noting that
the prospect of having a partys nominee determined by adherents of an opposing party is far
104
Jones, 530 U.S. at 580.

28
from remote indeed it is a clear and present danger.105 In other words the Courts objection to
the blanket primary was that it coerced political parties into having their nominees, and hence
their positions, determined by those who, at best have refused to affiliate with the party, and
at worst, have expressly affiliated with a rival. 106 Thus, the Court concluded that mandated
primary open to persons wholly unaffiliated with the party 107 imposed a severe burden. 108
SB54s provisions have no such problems. First, SB54 provides that only declared
members of a party can gather signatures or go through the convention process if the Party elects
to proceed as a QPP or RPP. Otherwise, the Party may maintain its current structure and have its
preferred candidate as an unaffiliated candidate and, again, voice and demonstrate its party
support for that candidate as the candidate of the party in any lawful manner. Thus, the statute
does not require in any way that the Party have an open primary.
In the second in the line of cases, the Court in Tashjian v. Republican Party of
Connecticut struck down a state law that prohibited state parties from allowing independent
voters to participate in their primaries. 109 The court reasoned that the statute was void because it
place[d] limits upon the group of registered voters whom the Party may invite to participate in
the basic function of selecting the Party's candidates.110 A state party must therefore have the
105
Id., 530 U.S. at 579.

Id. at 577.
107
Id. at 581. (emphasis added).
108
Id. at 577. See also La Follette, 450 U.S.at 122 (observing that parties must be able to
protect themselves from intrusion by those with adverse political principles).
109
479 U.S. 208 (1986).
110
Id. at 215-16.
106
29
freedom to include independent voters in its nomination process. 111 The Tashjian scenario is not
present in this case.
And third, in Clingman a state law allowed registered party members and independent
voters to vote in the Oklahoma Libertarian Partys primary election. Contrary to the Libertarian
Partys wishes, however, registered Democratic and Republican voters were not permitted to
participate. The Clingman Court held that the Oklahoma regulation did not impose a severe
burden on the Libertarian Partys associational rights, largely because the Libertarian Party
formed little association with a voter who [was] unwilling to disaffiliate from another party to
vote in the [Libertarian] primary. 112
The Jones-Tashjian-Clingman framework demonstrates that a burden on associational
interests may be severe when: (1) state law mandates that members of other parties may
participate in a primary election, with party raiding being the prime concern; or (2) state law
requires exclusion of independent voters from a partys primary election. Neither is the case
here.
SB54 does not compel political parties to include or exclude non-members in the
nomination process. The law permits a political party to determine whether unaffiliated voters
may participate. Only if the Party elected to proceed as a QPP would it be required to open its
primary to unaffiliated voters. SB54 therefore avoids any possibility of inflicting a severe
burden under the Jones-Tashjian-Clingman framework.
111
See Clingman, 544 U.S. at 59152 (declaring that Tashjian applied strict scrutiny with little
discussion of the magnitude of burdens imposed by Connecticuts closed primary on parties and
voters associational rights.).
112
Id. at 589.
30
Because the Party has no speech right to express itself on a state-funded ballot, the
complaint can hardly be characterized as a burden, much less a severe burden. Again, SB54
leaves political parties entirely free to define membership and to determine whether nonmembers may participate in primary elections. If it chooses to proceed as an RPP or QPP, a
partys closer affiliation with its own rank-and-file members or unaffiliated voters presents no
party raiding concern, as did the law invalidated in Jones. If the Party is concerned about
unaffiliated voter participation, an RPP may keep its primaries restricted to party members and
the Party may proceed in that manner. A party that affiliates with its members for all other
purposes, including the selection of nominees in marquee races, cannot be severely burdened by
a rule that increases rank-and-file participation in lower-profile nominations.113 As the Ninth
Circuit remarked in Alaskan Independence Party v. Alaska while reviewing a law similar to
SB54:
We are skeptical that such a conflict imposes a severe burden on parties
associational rights. Instead of having its nominee selected or screened by party
leadership, the partys nominee is selected democratically by registered party
voters (and any others whom the party chooses to let participate), from a slate of
all qualified, affiliated candidates who seek the nomination.114
Moreover, a political party is not monolithic. It consists of the party organization, partyaffiliated officeholders (i.e. party-in-the-government) and rank-and-file party members (i.e.
party-in-the-electorate).115 Because any possible burden to party bosses associational rights
113
If Clingman stood for the proposition that a party has little associational interest in the
inclusion of other parties members, this situation is the corollaryparties can have little
associational interest in excluding members.
114
Alaskan Independence Party v. Alaska, 545 F.3d 1173, 1179-80 (9th Cir. 2008).
115
V.O. KEY, JR., POLITICS, PARTIES & PRESSURE GROUPS 163-165 (1964) (describing the
tripartite concept of political parties).
31
would be off-set by the enhancement of party rank-and-filers associational rights, the party is
not burdened at all by SB54.116
The Party complains repeatedly that the State of Utah is substituting its judgment for the
Partys. The Party us the language of the Election case law, but not in the manner the language
is used in Election case law. Under any theory, SB54 does not substitute its judgment for the
Party. SB54 is a lawful exercise of Utahs constitutionally delegated power to proscribe the
manner in which elections in this state proceed. Substitution of judgment has a particular
meaning in Election law. For example, the Supreme Court has strictly scrutinized state attempts
to choose individuals to hold internal party positions. In Cousins v. Wigoda, certain nationalconvention delegates from the State of Illinois were chosen through private caucuses and later
seated by the 1972 Democratic National Convention.117 An Illinois state court, however,
enjoined this group from acting as delegates in an attempt to install another group that had been
selected through a state primary. 118 (These delegate positions did not appear on the states
general election ballot; they were internal party offices whose sole purpose was to attend the
partys national meeting and choose presidential and vice presidential nominees. 119) The
Cousins Court nullified the state courts injunction, noting that Illinois could not actually choose
the delegates when States themselves have no constitutionally mandated role in the great task
for the selection for Presidential and Vice-Presidential candidates and when the Convention
116
New York State Bd. of Elections v. Lopez Torres, 552 U.S. 196, 205 (2008) (To be sure, we
have, as described above, permitted States to set their faces against party bosses by requiring
party-candidate selection through processes more favorable to insurgents, such as primaries.).
117
Cousins v. Wigoda, 419 U.S. 477, 482-83 (1975).
118
Id.
119
Id. at 48081.
32
served the pervasive national interest in the selection of candidates for national office, and this
national interest is greater than any interest of an individual State.120
Similarly, in Democratic Party of U.S. v. Wisconsin ex rel. La Follette, the Court
considered whether Wisconsin could compel the 1980 Democratic National Convention to
accept its preferred convention delegation. 121 The Court ruled that a State, or a court, may not
constitutionally substitute its own judgment for that of the Party in selecting individuals to fill
internal party positions.122
The law of Cousins and La Follette is that a state may not compel the acceptance of its
preferred national-party convention delegation. Several factors undergird this conclusion. For
one, a state may not actually select a partys nominee, particularly for a purely internal party
position that will not later appear on a general-election ballot. For another, an individual state
may not impose rules on a national partys selection of presidential and vice presidential
nominees. State regulatory power is at its nadir in such instances because state-based rules
would frustrate the national interest served at national conventions and because the U.S.
Constitution does not enumerate a regulatory role for states with nationwide candidates as it does
with U.S. House and U.S. Senate candidates. 123
However, SB54 does not impose a severe burden under Cousins and La Follette. It is
obviously unrelated to national party conventions, national candidate nominations, and the
selection of internal party positions. Moreover, SB54 would not mandate that any particular
120
Id. at 48990.
La Follette, 450 U.S. at12123.
122
Id. at 12324. The Court specifically distinguished between the conduct of an actual election
and the selection of national-convention delegates.
123
U.S. Const. Art. I, 4 cl. 1.
121
33
individual be chosen as party nominee. Utahs political parties would remain entirely in control
of picking which candidates appear as party nominees on the general-election ballot.
Any burden imposed by SB54 is also not severe because the Party can maintain its ability
to endorse its candidates. The U.S. Supreme Court has applied strict scrutiny to state laws that
prohibit political parties from voicing their opinions on political candidates in a primary
election. 124
In Eu, the Court considered the constitutionality of a California state law that banned
party entities from endors[ing], support[ing], or oppos[ing], any candidate for nomination by
that party for partisan office in the direct primary election. 125 This raised the possibility that a
candidate with views antithetical to those of her party [could] nevertheless win its
primary.126 The Eu Court voided the law because it prevent[ed] party governing bodies from
stating whether a candidate adheres to the tenets of the party or whether party officials believe
that the candidate is qualified for the position sought.127 SB54 places no such muzzle upon
Utah political parties. If as a political association it finds that one of its candidates is not
acceptable to the Party, it may speak loudly and openly against that candidate. Not only is the
Party is free to do so, it did so in the recent case of Nancy Workman, where the Utah Republican
Party itself acted in exercise of its rights of association and expression to denounce its own
124
Eu v. San Francisco County Democratic Cent. Comm., 489 U.S. 214, 217 (1989).
Id. at 217.
126
Id.
127
Eu v. San Francisco County Democratic Cent. Comm., 489 U.S. 214, 223 (1989). See also
Buckley v. Valeo, 424 U.S. 1, 14 (1976) (debate on the qualifications of candidates [is] integral
to the operation of the system of government established by our Constitution.).
125
34
nominated candidate. As such, the Party cannot credibly maintain that SB54 includes Eu-like
constraints.
The Party contend that SB54 constitutes a severe burden by allowing candidates direct
access to the primary-election ballot should they gather the requisite signatures. The Partys
concern is that candidates may avoid the status quos pre-primary convention screening
process to access the primary ballot, raising the possibility that primary-election voters would
assume the party approves of all undesirable candidates based on the candidates ballot. The
Supreme Court rejected an identical claim related to a state general-election ballot in Washington
State Grange:
[R]espondents' assertion that voters will misinterpret the party-preference
designation is sheer speculation. It depends upon the belief that voters can be
misled by party labels. But [o]ur cases reflect a greater faith in the ability of
individual voters to inform themselves about campaign issues. 128
The possibility of this type of severe burden on party associational rights is even more remote
in a primary election than in Washington State Grange, given that the primarys very purpose
is to allow party voters to choose the partys nominee-to be the partys nominee.129
128
Wash. State Grange, 552 U.S. at 454 (quoting Tashjian, 479 U.S. at 220); see Wash. State
Republican Party v. Wash. State Grange, 676 F.3d 784, 793 (9th Cir. 2012) cert. denied, 133 S.
Ct. 110, (2012) and cert. denied, 133 S. Ct. 110(2012) (ruling, upon remand from the U.S.
Supreme Court that [t]here is nothing inherently misleading about equating a candidate's selfdeclared party preference with party affiliation: a candidate who has declared a preference for a
particular political party has affiliated with that party. The confusion that is at issue here is
whether voters mistakenly believe the party has affiliated with the candidate, not vice versa. In
light of the clear language of the ballot, the Voters' Pamphlet and the ballot insert, no reasonable
voter would be confused).
129
Alaskan Independence Party, 545 F.3d at 1179 (emphasis in original).
35
SB54 fully allows any political party to continue to state[ ] whether a candidate adheres
to the tenets of the party or whether party officials believe that the candidate is qualified for the
position sought.130 Utahs political party organizations retain the ability to freely voice their
opinions on primary-election candidates and maintain their right to distance [themselves] from
undesired candidates and urge party voters to choose the nominee who the party feels best
represents the party platform. 131
For all of the foregoing reasons, SB54 does not impose a severe burden on the Partys
associational or speech rights.
c.
SB54 Serves Important Regulatory Interests
Because SB54 does not severely restrict the Partys constitutional rights, it is
constitutional so long as it is non-discriminatory and justified by merely important regulatory
interests.132 States are presumed to have important regulatory interests in issuing rules that
affect the selection of party nominees to appear on the general-election ballot.133 Even relatively
indeterminate interests, such as providing voters with relevant information about the ballot and
voter education qualify as important.134 Generally speaking, a law that imposes a less-than130
Eu, 489 U.S. at 223.

Alaskan Independence Party, 545 F.3d at 117980; see also Timmons, 520 U.S. at 363
(upholding state law where the party retained great latitude in its ability to communicate ideas
to voters and candidates through its participation in the campaign, and party members may
campaign for, endorse, and vote for their preferred candidate even if he is listed on the ballot as
another partys candidate.).
131
132
Timmons, 520 U.S. at 358.

See La Follette, 450 U.S. at 122 (Obviously, States have important interests in regulating
primary elections.) (citing United States. v. Classic, 313 U.S. 299, n.28 (1941).
134
See e.g., Wash. State Grange, 552 U.S. at 458; Hagelin for President Comm. of Kansas v.
Graves, 25 F.3d 956, 961 (10th Cir. 1994) (upholding law based on states declared interest in
voter education).
133
36
severe burden will not be struck down because it fails to serve important regulatory interests.
SB54 clears this low hurdle. It is non-discriminatory because it would apply equally to all
political parties. And SB54s reforms are also justified by numerous important regulatory
interests. The States compelling state interests, discussed below if the Court determines that
strict scrutiny applies, would certainly qualify as important state interests to meet the lower
threshold.
At least two regulatory interests come to mind quickly and, as mentioned, any of the
three compelling interests articulated below would qualify as regulatory interests as well, as a
compelling interest logically encompasses a smaller set of interests.
i.
SB54 Alleviates the Current Burdens on the Constitutional

Rights of Party Candidates and Rank-and-File Members
Utahs process for selecting nominees to appear on the general-election ballot affects the
associational rights of not only political party organizations, but party candidates and rank-andfile members as well. In enacting elections laws, States must engage in a tough balancing act
that culminates in a procedure that protects the rights of political organizations, the rights of
candidates, and the rights of voters.135 With ballot-access rules in particular, the rights of
voters and the rights of candidates do not lend themselves to neat separation; laws that affect
candidates always have at least some theoretical, correlative effect on voters. 136 This is because
135
Greenville County Republican Party Executive Comm. v. S. Carolina, 6:10-CV-01407-JMC,

2011 WL 1237555 (D.S.C. Mar. 30, 2011).
136
Bullock v. Carter, 405 U.S. 134, 143 (1972). See also Hagelin for President Comm. of
Kansas v. Graves, 25 F.3d 956, 959 (10th Cir. 1994) (Ballot access restrictions burden two
different, though overlapping, rights: the right of individuals to associate to advance their
political beliefs, and the right of qualified voters to cast effective votes.) (citing Populist Party
v. Herschler, 746 F.2d 656, 659 (10th Cir.1984)).
37
the ballot is the [s]tate devised form through which candidates and voters are permitted to
express their viewpoints and associational preferences in the political forum. 137
By providing candidates access to the primary ballot through nomination petitions, SB54
serves a compelling interest by attempting to rebalance Utahs ballot-access status quo in a
manner that would provide greater protection for the constitutional rights of party candidates and
rank-and-file members, as they may be more likely to participate in a closed primary where they
may use the signatory process as one mode of entry, and members might be expected to help
those with fortitude enough to go through the signatory gathering process, which, if nothing else,
possibly could foster more up close civic debate as Utahns entering the political fray would
speak to each other about the political and social interests that matter to them.
ii.
SB54 Increases Primarily Election Ballot Access for Party

Members Who Would Attempt to Serve the Public
The right of an individual to a place on a ballot is entitled to protection,138 partly

because an election campaign is a means of disseminating ideas as well as attaining political
office.139 Exclusion from an opportunity to be a partys candidate burdens the right of political
137
Graves v. McElderry, 946 F. Supp. 1569, 1578 (W.D. Okla. 1996) (quoting Rosen v. Brown,
970 F.2d 169, 175 (6th Cir.1992)). See also Lubin v. Panish, 415 U.S. 709, 716 (1974) (The
interests involved are not merely those of parties or individual candidates; the voters can assert
their preferences only through candidates or parties or both and it is this broad interest that must
be weighed in the balance. The right of an individual to a place on a ballot is entitled to
protection and is intertwined with the rights of voters.).
138
Lubin, 415 U.S. at 716.
139
Illinois State Bd. of Elections v. Socialist Workers Party, 440 U.S. 173, 185 (1979). See also
Munro v. Socialist Workers Party, 479 U.S. 189, 198-99 (1986) ([I]f a candidate failed to
satisfy the qualifying criteria the candidate had no ballot-connected campaign platform from
which to espouse his or her views.).
38
association.140 Thus, stringent primary election ballot-access restrictions may indeed impinge
on party candidates associational rights. 141 Restrictions are justified only to the extent they
require a candidate to demonstrate a significant modicum of support.142
Utahs previous process for selecting party nominees to appear in the general election
features what is, according to some, the highest barrier for a candidates entry onto a primary
election ballot of any state in the nation. 143 Under previous state law and major-party rules, a
candidate may appear on a primary-election ballot only if certified as one of the top two votegetters at a party convention. 144 Courts typically measure a ballot-access barriers height by the
number of required nomination-petition signatures.145 Utahs ballot-access scheme is onerous,
though, for other reasons. It needlessly rations primary-election ballot positions to a maximum
of two candidates, even if others may demonstrate a significant modicum of support from
primary voters. It is laborious for candidates, requiring them to run a campaign among party
insiders just to have rank-and-file party members later consider their candidacies. And it
conditions candidates ballot access on currying favor with an exceedingly narrow slice of party
140
Campbell v. Bysiewicz, 242 F. Supp. 2d 164, 176 (D. Conn. 2003) (citing Anderson v.
Celebrezze, 460 U.S. 780, 787-788 (1983)).
141
Anderson, 460 U.S. at 786 (1983) (Our primary concern is with the tendency of ballot access
restrictions to limit the field of candidates from which voters might choose. Therefore, [i]n
approaching candidate restrictions, it is essential to examine in a realistic light the extent and
nature of their impact on voters.) (quoting Bullock v. Carter, 405 U.S. 134, 143 (1972)).
142
New York State Bd. of Elections v. Lopez Torres, 552 U.S. 196, 204 (2008).
143
Paul Rolly, Utah Ripe for Election Manipulation, The Salt Lake Tribune (Aug. 14, 2010)
(remarking that Utah has the highest barrier for a candidates entry onto a primary election
ballot of any state in the nation.).
144
Utah Code Ann. 20A-9-403(2)(b).
145
See, e.g., Norman v. Reed, 502 U.S. 279, 295 (1992) (approving requirement of 25,000
signatures, or approximately two percent of the electorate).
39
insiders, while excluding other candidates who are popular among the partys broader
membership. 146 Because a party candidate uses an election campaign [as] a means of
disseminating ideas, these restrictions encumber important associational rights by preventing
access to the primary election for some candidates and their ideas.
SB54 this burden on party candidates associational rights by providing better access to
the primary ballot. Candidates would access the primary ballot by gathering the requisite
number of nomination-petition signatures. SB54 permits a candidate who demonstrates a
significant modicum of support to place his name on the ballot and his ideas on the table for
party rank-and-filers consideration during the primary election. SB54 serves a compelling state
interest by providing greater protection for party candidates associational rights.
Utah has a vital interest in maintaining active policy exploration in this area as it is
political participation is a fundamental way we feel and express. The ability of the states to
continue to be centers for experimentation in social policy is in question of late, as especially
since the 1980s the growth of federal regulation has increased several fold . Yet such growth
should not hamper state experimentation with social and political policy as our local Legislature
attempts to fashion election policy that likely increases civic participation.
As this Court is well aware, the structure of our Constitution is premised on the dignity of
the sovereign States. One hopes that this is one of those truths so basic that, like the air
around us, they are easily overlooked.147 To have any vital meaning at all, the state sovereignty
recognized by the Constitution means that state citizens must retain the basic ability to govern
146
See e.g., Jamshid Askar, Olene Walker: Legacy without an Heir, Deseret News (July 201,
2011) (describing former Utah Governor Olene Walker being denied a place on the Utah
Republican primary ballot despite an 81 percent overall approval rating).
147
New York v. United States, 505 U.S. 144, 187 (1992).

40
themselves. This Court has explained that the Constitution assume[s] the States active
participation in the fundamental processes of governance. 148
The fact that the United States has multiple sovereignsat least 50 labs of social policy
experimentationmeans the American people have more freedom, not less. The federal system
rests on what might at first seem a counterintuitive insight, that freedom is enhanced by the
creation of two governments, not one.149 Federalism enhances collective freedom through the
diffusion of sovereign power.150 Judge Friendly echoed this insight: We must stand in awe and
admiration of our federal republic, which leav[es] to the states the final decision on the bulk of
day-to-day matters that can be best be decided by those who are closest to them. 151
By protecting state sovereignty, our Constitution reinforces the stability of an
increasingly diverse Nation. A century ago, Justice Holmes rightly observed that our
Constitution is made for people of fundamentally differing views.152 The Constitution remains
such a document because of its federal structure. By allowing States to differ on important
matters, the Constitution ensures the States vital ability to serve as laboratories for social and
economic experiment.153 Federalism thus assures a decentralized government that will be
more sensitive to the diverse needs of a heterogeneous society. 154 Utah has a fundamental
148
Id.; see also Printz v. United States, 521 U.S. 898, 935 (1997) (commanding state officers to
administer a federal program is fundamentally incompatible with our constitutional system of
dual sovereignty).
149
Bond v. United States, 131 S. Ct. 2355, 2364 (2011) (quoting Alden, 527 U.S. at 758).
150
New York, 505 U.S. at 181.
151
Henry J. Friendly, Federalism: A Foreword, 86 YALE L.J. 1019, 1034 (1977).
152
Lochner, 198 U.S. at 75-76 (Holmes, J., dissenting).
153
Garcia v. San Antonio Metropolitan Transit Auth., 469 U.S. 528, 546 (1985) (citing New
State Ice Co. v. Liebmann, 285 U.S. 262, 311 (1932) (Brandeis, J., dissenting)).
154
Gregory v. Ashcroft, 501 U.S. 452, 458 (1991).
41
interest in pursuing such measure in social policy experimentation as the representatives of the
People in the Legislature attempt to make law that is ever better for Utah citizens.
3. SB54 Is Constitutional Even if Reviewed Under Strict Scrutiny.
SB54, as discussed, does not impose a severe burden on political parties associational
rights. But even if the Court believes that the Party has supplied sufficient evidence to indicate
that SB54 does impose a severe burden, SB54 would still be constitutional because it advances
three compelling state interests in a narrowly tailored manner:155 Ensuring the election
processs integrity and reliability; alleviating the burdens of constructional rights of individuals
candidates; enhancing access to the ballot for political party members who wish to serve the
public; improving voting opportunities for political party members; and improving voter
participation altogether.
a. SB 54 Furthers Compelling State Interests
iii.
SB54 Ensures the Election Processs Integrity and Reliability.
Utah and other states have a compelling interest, if not a duty 156 in protecting
the integrity and reliability [of its] electoral process, 157 which includes any mechanism for
selecting party nominees to appear on the general-election ballot.158
155
Washington State Grange, 552 U.S. at 451 (quoting Clingmanr, 544 U.S. at 586-87)
(Election regulations that impose a severe burden on associational rights are subject to strict
scrutiny, and we uphold them only if they are narrowly tailored to serve a compelling state
interest.); But see Burdick , 504 U.S. at 434 (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.) (citing Norman v. Reed, 502 U.S. 279, 289 (1992)).
156
Bullock v. Carter, 405 U.S. 134, 145 (1972) (State has an interest, if not a duty, to protect the
integrity of its political processes from frivolous or fraudulent candidacies.). See also Eu v. San
Francisco County Democratic Cent. Comm., 489 U.S. 214, 231 (1989) (A State indisputably
42
SB54 protects the election processs integrity and reliability by upholding public
confidence in the legitimacy of representative government.159 This interest is closely related to
voter fraud detection and prevention, as well as confidence in the integrity of the electoral
process has independent significance, because it encourages citizen participation in the
democratic process.160 Administrative problems, such as those that plagued at times Utahs
scheme for selecting party nominees to appear on the general-election ballot, can undermine faith
in the electoral process and a governments legitimacy. SB54 avoids such a crisis in confidence
by using uniformly administered primary elections to settle nomination contests.
iv.
SB54 Improves Voting Opportunities for Rank and File Party

Members
The U.S. Supreme Court has acknowledged an individual's associational right to vote in
a party primary without undue state-imposed impediment.161 This right is important, given that
a prime objective of most voters in associating themselves with a particular party must surely be
has a compelling interest in preserving the integrity of its election process.) (citing Rosario v.
Rockefeller, 410 U.S. 752, 761 (1973)).
157
Crawford v. Marion County Election Bd., 553 U.S. 181, 190 (2008) (citing Harper v.
Virginia Bd. of Elections, 383 U.S. 663, 788 at n. 9 (1966)).
158
Eu, 489 U.S. at 231 (We have also recognized that a State may impose restrictions that
promote the integrity of primary elections. See, e.g., American Party of Texas v. White, 415
U.S., at 779-780, 94 S.Ct., at 1305-1306 (requirement that major political parties nominate
candidates through a primary and that minor parties nominate candidates through conventions)).
159
Crawford v. Marion County Election Bd., 553 U.S. 181, 191 (2008).
160
Id.
161
Lopez Torres, 552 U.S. 196, 204 (2008) (citing Kusper v. Pontikes, 414 U.S. 51, 58 (1973)).
See also Clingman, 544 U.S. 581, 592 (2005) (O'Connor, J., concurring in part and concurring in
the judgment) (expressing the view that "[t]he act of casting a ballot in a given primary may, for
both the voter and the party, constitute a form of association that is at least as important as the act
of registering.").
43
to gain a voice in that selection process.162 Party rank-and-filers must be able to consider in a
primary election choices of nominees within a spectrum of ideas consistent with the party's and
its members' views.163 The exclusion of candidates burdens voters' freedom of association,
because an election campaign is an effective platform for the expression of views on the issues of
the day, and a candidate serves as a rallying-point for like-minded citizens.164 Party members
associational rights are heavily burdened if:
[A] vote may be cast only for one of two candidates in a primary election at a
time when other candidates are clamoring for a place on the ballot. It is to be
expected that a voter hopes to find on the ballot a candidate who comes near to
reflecting his policy preferences on contemporary issues. 165
Harsh ballot-access rules for candidates in the primary election partially disenfranchise broader
party membership and therefore may hamper party rank-and-file members associational rights.
Utahs prior system often confined rank-and-file party members to limited involvement
in selecting nominees to appear on the general-election ballot. Rank-and-filers have no
opportunity to consider candidates directly nominated by party insiders at a state or local
convention. Rank-and-filers may select a nominee from, at most, two candidates who have been
pre-screened by a party convention. Party members associational rights were burdened under
162
Kusper v. Pontikes, 414 U.S. 51, 58 (1973).

Campbell v. Bysiewicz, 242 F. Supp. 2d 164, 175 (D. Conn. 2003). See also Anderson, 460
U.S. at 786 (Our primary concern is with the tendency of ballot access restrictions to limit the
field of candidates from which voters might choose. Therefore, [i]n approaching candidate
restrictions, it is essential to examine in a realistic light the extent and nature of their impact on
voters.) (quoting Bullock v. Carter, 405 U.S. 134, 143 (1972)).
164
Anderson, 460 U.S. 780, 787-88 (1983).
165
Lubin, 415 U.S. 709, 716 (1974). See also Campbell v. Bysiewicz, 242 F. Supp. 2d 164, 175
(D. Conn. 2003) (Though the state may not dictate a party's choice of its nominee, it may not
stand by, nor openly endorse or foster, a process which freezes out the right of party members to
participate in the process.).
163
44
Utahs previous arrangement because a vote could be cast only for one or two candidates in a
primary election at a time when other candidates are clamoring for a place on the ballot.
Some might argue that the party delegates and leadership act on rank-and-filers behalf in
selecting nominees and winnowing the field of candidates. However, the ability of party insiders
to select a nominee does not assist the party rank and file, who may not themselves agree with
the party leadership.166
SB54 eases the burden on rank-and-filers associational rights. An accessible primaryelection ballot would leads to more nominations decided by rank-and-filers and to more
candidates in each nomination contest competing at the primary-election stage. Broader and
deeper choices during the primary election will increase the likelihood that a rank-and-filer will
find on the ballot a candidate who comes near to reflecting his policy preferences on
contemporary issues. This compelling state interest is served by SB54.
v.
SB54 Improves Voter Participation.
Voter turnout is vital. In a representative democracy, for example, high voter turnout
may be a sign of governmental legitimacy. 167 Voter turnout rates have been dismal under Utahs
existing electoral system. 168 A slothful public is not to blame, as Utahs population boasts the
166
Jones, 530 U.S. at 581. See also Campbell, 242 F. Supp. 2d at 176 (opining that the ability
of a party's leadership to select party nominees is no substitute for the party members ability to
select their own nominees, which may diverge from the leaders choice.) (internal quotations
and citations omitted).
167
See Richard L. Hasen, Voting Without Law?, 144 U. PA. L. REV. 2135, 2137 (1996).
168
See Lee Davidson, Utah Has Nations Worst Voter Turnout Rate, Deseret News (July 5,
2008); Lee Davidson, Utah Voter Turnout is DismalAgain, Deseret News (Mar. 23, 2011);
Robert Gehrke, Mitt or Not, Utah Voter Turnout Was Paltry, The Salt Lake Tribune (Nov. 24,
2012).
45
highest volunteerism rate of any state in the nation.169 Recognizing voter turnouts importance in
Utah, the state has actively experimented170 with reforms to bolster participation rates.171
As discussed, SB54 should be viewed as one part of a comprehensive effort to improve
voter participation rates in Utah. Further, SB54s ballot-access reforms would increase electoral
competitionthe primary election would likely feature more nomination contests and more
candidates in each nomination contest.172 Because increasing electoral competition is a proven
method for turning-out voters,173 SB54 serves a compelling state interest by improving voter
participation rates during the primary election.
SB54 is also designed to motivate candidates and other actors to extend their outreach
and get-out-the-vote efforts to a broader swath of citizens. Currently, outreach and get-out-thevote efforts are limited to party convention delegates, since delegates are the key decision169
Gina Barker, Utah Tops the Nation in Volunteering, The Salt Lake Tribune (Aug. 9, 2011).
California Democratic Party v. Jones, 530 U.S. 567, 601, 120 S. Ct. 2402, 2422, 147 L. Ed.
2d 502 (2000) (noting that states often experiment with reforms designed to make the
democratic process more robust. (Stephens, J. dissenting). See also Alaskan Independence
Party v. Alaska, 545 F.3d 1173, 1178 (9th Cir. 2008) (We have also agreed that the State's
interest in enhancing the democratic character of the election process overrides whatever interest
the Party has in designing its own rules for nominating candidates, such as its desire to nominate
through party-run convention.).
171
See e.g., Pew Center on the States, Press Release, Governor Herbert, Pew Center on the
States, and Hinckley Institute of Politics Collaborate to Modernize Voter Registration (Jan. 13,
2011) (describing collaborative project to streamline Utah voter registration processes); Bob
Bernick, Jr., Huntsman Appoints Ethics Reform Panel, Deseret News (Jan. 23, 2009) (discussing
Utah Governor Jon Huntsman, Jr.s appointment of an 18-member commission to recommend
reforms for bolstering voter participation rates).
172
See U.S. v. Classic, 313 U.S. 299, 320 (1941) (stating that political primaries can play an
enormous role in determining whether a general election is truly competitive).
173
League of United Latin Am. Citizens v. Perry, 548 U.S. 399, 471 (2006) (noting that
electoral competition plainly has a positive effect on the interest and participation of voters in
the electoral process.) (quoting Trevor Potter & Marianne Viray, Election Reform: Barriers to
Participation, 36 U. Mich. J.L. Reform 547, 575 (2003)).
170
46
makers in nomination races. SB54, however, gives incentive to a greater number of rank-andfilers, thereby increasing the possibility that they receive attention from candidates and other
political actors through methods that can boost participation rates, such as issue-related
information and voting reminders. SB54 would therefore serve a compelling state interest by
improving voter participation rates during the primary election.
b. SB54 Advances State Interests in a Narrowly Tailored Manner
SB54 is narrowly tailored to serve the five compelling state interests articulated.
[W]hen pursuing a legitimate interest, a State may not choose means that unnecessarily restrict
constitutionally protected liberty.174 A state must use narrowly tailored methods, which
means it must utilize the least drastic means to achieve [certain] ends.175
SB54 abides by this narrowly tailored requirement. The Supreme Court has suggested
a state-administered primary election that does not pose party raiding concerns is narrowly
tailored per se. 176 The RPP path available to the Party allows the Party to completely avoid
Party raiding concerns as it allows for Republican only candidates in Republican only primaries.
Potential opponents may object to this characterization of SB54 as limited reform, noting
that nomination contests will now be decided through primary elections. But such an objection
is, at best, a complaint about the increased frequency with which an existing nomination-
174
Kusper v. Pontikes, 414 U.S. 51, 58 (1973) (citing Dunn v. Blumstein, 405 U.S. 330, 343
(1972)).
175
Illinois State Bd. of Elections v. Socialist Workers Party, 440 U.S. 173, 185 (1979). See also
Kusper v. Pontikes, 414 U.S. 51, 58-59 (1973) (If the State has open to it a less drastic way of
satisfying its legitimate interests, it may not choose a legislative scheme that broadly stifles the
exercise of fundamental personal liberties.) (citing Shelton v. Tucker, 364 U.S. 479, 488
(1960)).
176
See, e.g., California Democratic Party v. Jones, 530 U.S. 567, 585 (2000).
47
selection method would be used. If SB54 cannot facilitate increased use of an existing
nomination-selection method, it is difficult to conceive of any rule that would qualify as
narrowly tailored.
For these reasons, SB54 is therefore constitutional, even if subjected to strict scrutiny,
because it advances state interests in a narrowly tailored manner.
E.
The Partys Unconstitutional Choice or Unconstitutional Condition

Argument is Without Merit
The Party maintains that SB54 violates the federal Constitution as an unconstitutional
choice or unconstitutional condition because it seeks to condition the Partys right to

participate in the political process on its agreement to surrender control of the internal selection
process of its candidates for office. 177 The Party maintains that the different paths offered by
the statutory scheme are unconstitutional false choices because the Party apparently contends
that they have an unfettered right to both place a candidate on the ballot and that any
requirements on their ability to do so constitutes an unconstitutional choice. 178 At its most
articulated formulation, the Party states that the Party has already rejected the SB54
requirements by passing resolutions at its conventions and central meetings . . . and . . . the State
cannot receipts of a government benefit on the surrender of rights of free speech and
association. For the reasons stated briefly below, which also rely on the ample analysis above,
the Partys unconstitutional conditions argument is meritless.
Under the modern unconstitutional conditions doctrine . . . the government may not
deny a benefit to a person on a basis that infringes his constitutionally protected freedom of
177
178
Id. at vii., para. 4.

Id. at 5-6.
48
speech even if he has no entitlement to that benefit.179 To do so, the Supreme Court has
explained, would allow the government to produce a result which it could not command
directly.180 There are two types of unconstitutional conditions, prospective and
retrospective. 181 The condition acts prospectively in statutes or regulations that limit a
government-provided benefittypically a subsidy or tax breakto those who refrain from or
engage in certain expression or association.182 These cases recognize that the government
ordinarily can impose conditions on the receipt of government funding, but that conditioning a
benefit on someones speech or association achieves an effect similar to direct regulation of the
speech or association.183 The unconstitutional-conditions doctrine has been applied when the
condition acts retrospectively in a discretionary executive action that terminates a governmentprovided benefittypically public employment, a government contract, or eligibility for
eitherin retaliation for prior protected speech or association. 184 The Party seems to allege only
prospective injury as it claims to be constitutionally harmed by compliance with SB54.
Yet the Partys unconstitutional condition argument fails because, as discussed at length
above, the Party does not have an unfettered right to have its candidate on the ballot, as under
179
Bd. of Cnty. Comm'rs v. Umbehr, 518 U.S. 668, 674 (1996) (ellipsis and internal quotation
marks omitted).
180
Perry v. Sindermann, 408 U.S. 593, 597 (1972).
181
Planned Parenthood of Kansas and Mid-Missouri v. Moser, 747 F.3d 814, 838-339 (10th Cir.
2014).
182
See, e.g., FCC v. League of Women Voters, 468 U.S. 364, 366 (1984) (federal statute that
forbids recipients of public-broadcasting subsidy from engag[ing] in editorializing (internal
quotation marks omitted)); Speiser v. Randall, 357 U.S. 513, 515 (1958) (state constitutional
provision and effectuating statute that grant tax exemption only to veterans who pledge not to
advocate overthrowing the government).
183
See Rumsfeld v. Forum for Academic & Institutional Rights, 547 U.S. 47, 59 (2006).
184
See, e.g., Perry, 408 U.S. at 597, 92 S.Ct. 2694 (nonrenewal of professor's contract with state
university by board of regents in retaliation for his criticizing the board).
49
that theory, every or nearly every manner regulation the State is entitled by direct
constitutional grant could be an unconstitutional conditions, and the balancing test applicable to
election law cases tell us that is not the case.185 And the Party does not have a speech right in
the ballot as described at length above as well.186 The Party cannot be forced to give up
rights, which, as a matter of law, it never in an absolute sense possesses.
For all of the foregoing reasons, the Party has not met its burden of demonstrating it is
likely to succeed on the merits, and the Partys Motion should be denied on that basis.
II.
IRREPARABLE HARM
The Party claims that it will be irreparably harmed if it must comply with SB54 as
they argue that the statute violates as a necessary consequence the Partys speech and
association rights under the First Amendment. The Party further argues that it will be
irreparably harmed as consequence of having to hold its convention or caucus at a differ time
that it had planned, as the Party claims that it does not have sufficient time to go through the
internal procedures it must in order to see if the Partys members wish to comply with the statute.
Under the facts and law before the Court, the Party cannot maintain that it will suffer irreparable
harm.
To constitute irreparable harm, an injury must be certain, great, actual and not
theoretical. Irreparable harm is not harm that is merely serious or
substantial. The party seeking injunctive relief must show that the injury
complained of is of such imminence that there is a clear and present need for
185
See, e.g., Timmons, 520 U.S. at 359 (upholding Minnesota's fusion ban against minor party's
challenge and stating [t]hat a particular individual may not appear on the ballot as a particular
partys candidate does not severely burden that party's associational rights).
186
Washington State Grange, 552 U.S. at 453, n.7 (It is true that parties may no longer indicate
their nominees on the ballot, but that is unexceptional: The First Amendment does not give
political parties a right to have their nominees designated on the ballot.).
50
equitable relief to prevent irreparable harm. It is also well settled that simple
economic loss usually does not, in and of itself, constitute irreparable harm;
such losses are compensable by monetary damages.187
As with the other four required elements necessary for a preliminary injunction to issue,
Plaintiff bears the burden of showing that this element weighs clearly and unequivocally in
their favor.188
As the Tenth Circuit makes clear in the passage quoted above, economic loss does not
constitute irreparable harm, and so any of the Partys complaints of cost with respect to moving
up meeting dates to coordinate how it will respond to standing Utah election law or how it will
be inconvenienced with respect to scheduling etc. do not as a matter of law as irreparable. They
cannot prevail on this theory based on the facts discovered to date either. In his deposition,
Republic Party Chairman Mr. James Evans Mr. Evans testified that the Republican Party is
making every effort to change its governing documents to make them consistent with the
provisions of SB54.189 In advance of August 15, 2015, the date set for the convention, Mr.
Evans will meet with delegates to explain the proposed changes to the Bylaws and
Constitution and try to create a unity of purpose so that the changes to the Partys
governing documents can be adopted at the convention if enough delegates support these
changes. 190 While there is no guarantee that the delegates will approve the proposed
changes to the Partys Bylaws and Constitution, Mr. Evans is taking the necessary steps to
ensure that the delegates can vote on these changes at the August 15th convention:
187
Heideman v. South Salt Lake City, 348 F.3d 1182, 1189 (10th Cir. 2003) (internal
quotations, citations and brackets omitted) (emphasis in original).
188
Id. at 1198.
189
Evans, dep., p. 140, l. 12-15; 141, l. 5-8. The party is finalizing the proposed changes to the
Partys Bylaws and Constitution. Id., p. 141, l. 23-24
190
Id. p. 141, l. 25; p. 142, l. 1-3; p. 143, l. 4-10; 146, l. 1-14
51
Q: If changes need to be made to your constitution and bylaws because

of SB54 they can be made?
Mr. Evans: Yeah.
Q. I understand that you dont know whether the proposed changes will
get approved at the convention on August 15th, right
A. Right.
[W]ere making sure that, uh, proposed changes are
presented . . . .191
Accordingly, the Partys claim that it is irreparably harmed because it would be
impossible to change the Partys Constitution and Bylaws before September 30, 2015 (the
date by which the party can choose to be classified as a qualified political party) is not
correct. On August 15, 2015, the Party will hold a convention to vote on proposed
changes to its Bylaws and Constitution. The Party need not change its Bylaws and
Constitution if it elects not to be a RPP. But, even if the Party chooses to be a QPP, there
is sufficient time for the Party to amend its governing documents.
Although federal courts have held that alleged violations of the First Amendment
protections give rise to a presumption of irreparable harm in certain cases, 192 that principal
is not universally true, nor is it applicable here. As one member of this Court has noted in the
First Amendment context, presumptions, are not assumptions.193 And no federal court
has ever said that irreparable harm should be assumed when such constitutional allegations
are at issue in a motion for preliminary injunction. To do so would render the irreparable
harm prong of the preliminary injunction test meaningless in such cases. Even if such were
found to be the general practice among courts reviewing injunction motions, such a practice
191
Id., p. 145; l. 1-6; l. 17-20; p. 146, l. 2-3.

See Free Speech Coalition v. Shurtleff, 2007 WL 922247, *18 (D. Utah 2007) (Kimball, J.)
(and cases cited therein); see also Heideman, 348 F.3d at 1190 (noting presumption when
infringement of First Amendment rights is alleged).
193
Free Speech Coalition, 2007 WL 922247 at *18.
192
52
would not accord with the law. Indeed, the Tenth Circuit has stated that the merits of
constitutional claims must be considered by reviewing courts when evaluating whether the
presumption of irreparable harm applies in a given case. 194 In such cases where the
showing is not strong on the merits, the presumption does not apply.
Such is the case here. As noted above in the discussion of the Partys unlikely to succeed
on the merits of their case, and therefore the Party has not demonstrated clearly and
convincingly that it is entitled to a preliminary injunction.
III.
BALANCE OF HARMS
To be entitled to a preliminary injunction, the movant has the burden of clearly and
unequivocally showing that the threatened injury to the movant outweighs the injury to the
other party under the preliminary injunction.195
The Party has articulated alleged constitutional harm, which Utah has addressed and
dispelled in its discussion of the Partys likelihood of success on the merits. As noted in that
discussion, the only other harm the Party has articulated is economic, and it appears that the
Party would be having the meetings it has noted in the normal course absent SB54.
The harm Utah will suffer, however, is even more severe. [A]ny time a State is enjoined
by a court from effectuating statutes enacted by representatives of its people, it suffers a form of
irreparable injury.196 Postponing the enforcement of a law, which for analysis under this prong
194
See Heideman, 348 F.3d at 1190 (It is necessary, however, to consider the specific
character of the First Amendment claim.).
195
Kikumura, 242 F.3d at 955; accord Heideman, 348 F.3d at 1190.
196
New Motor Vehicle Bd. of California v. Orrin W. Fox Co., 434 U.S. 1345, 1351 (1977)
(Rehnquist, J., in chambers).
53
enjoys the presumption of legality, is itself an injury that weighs in favor of the Defendants. 197).
. Moreover, the uncertainty that the balance of Utahs citizens and political parties will be great,
and Utah obviously has an interest in their political well-being, which was an impetus for SB54
itself.
As such, the balance of harms again tips in favor of Utah and the Party has not met its
burden under this required prong to be entitled to a preliminary injunction.
IV.
PUBLIC POLICY
A movant also has the burden of clearly and unequivocally demonstrating that the injunction, if
issued, is not adverse to the public interest.198 As discussed above both in the likelihood of
success on the merits section and the irreparable harm section, granting an injunction to stop
effectuation of a valid statute is adverse to the public interest. The Party has raised only
prospective constitutional harms as grounds for the interest of the injunction; as discussed above
in detail, those prospective harms are minimal if at all existent. The Party has not met its burden
on this requirement to obtain a preliminary injunction either.
CONCLUSION
For the foregoing reasons, Utah respectfully requests that this Court DENY the Partys
Motion.
197
198
See Heideman, 348 F.3d at 1190.

Kikumura, 242 F.3d at 955.
54
DATED this March 31, 2015.
OFFICE OF THE UTAH ATTORNEY GENERAL

/s/Parker Douglas
PARKER DOUGLAS
Utah Federal Solicitor
DAVID N. WOLF
THOM D. ROBERTS
KYLE KAISER
Assistant Utah Attorneys General
Counsel for Defendants
55
CERTIFICATE OF SERVICE
I hereby certify that I caused to be e-mailed a true and accurate copy of the foregoing,
DEFENDANTS RESPONSE TO PLAINTIFFS AMENDED MOTION FOR
PRELIMINARY INJUNCTION on the 31st day of March 2015 to the following:
Marcus R. Mumford
Email: mrm@mumfordpc.com
Michelle Mumford
Email: michlmumford@gmail.com
Collin R. Simonsen
Email: collin@mountainwestlaw.com
Gregory M. Simonsen
Email: greg@mountainwestlaw.com
/s/ Parker Douglas
56

Defendants' Brief in Opposition To Plaintiff's Amended Motion For Preliminary Injunction

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Case 2:14-cv-00876-DN-DBP Document 68 Filed 03/31/15 Page 1 of 67

PARKER DOUGLAS (8924)

IN THE UNITED STATES DISTRICT COURT

UTAH REPUBLICAN PARTY,

DEFENDANTS BRIEF IN OPPOSITION

Case No. 2:14-cv-00876-DN

Case 2:14-cv-00876-DN-DBP Document 68 Filed 03/31/15 Page 2 of 67

The Statute at Issue and Its Provisions . v

Facts Related to the Partys Constitutional Claims .. i

LIKELIHOOD OF SUCCESS ON THE MERITS3

The Party Presents an As-Applied Challenge 3

The Partys Repeated Citations to Legislative History Should Be Disregarded... 4

The States Constitutionally Authorized, Broad Power to Regulate Elections

The Party Has No First Amendment Speech Right on Utahs Ballots.. 7

Utah Has the Right to Regulate Elections

First Amendment Election Law Challenges Are Subject to a Sliding

SB54 Is Constititional Because It Does Not Impose a Severe Burden,

As a Matter of Fact, SB54 Does Not Impose a Severe Burden on

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SB 54 Furthers Compelling State Interests ...41

i. SB54 Increases Primarly Election Ballot Access for Party

SB54 Improves Voter Participation...43

BALANCE OF HARMS .53

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The Statute at Issue and Its Provisions

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The provisions of SB 54 retained Utahs caucus and convention system and

supplemented the process for selecting political nominees by allowing a candidate to be

Qualified Political Parties (QPP). 5

However, the Lieutenant Governors implementation of SB54 did not contemplate or

2015 General Session and further modified Utahs Election Code.

a person shall state:

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running in party primaries must be members of the party.

to being an unaffiliated voter.8

Senate Bill 54 (2014) Frequently Asked Questions, (doc. 65 p.3.).

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demonstrating they have a reasonable amount of party voters support by completing a

Utah Code 20A-9-403(2)(a).

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The remaining provisions of that section refer only to a member of

a qualified political party.

Utah Code 20A-9-101(12)(a)-(d).

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Utah Code 20A-9-403(2)(a)(ii).

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Facts Related to the Partys Constitutional Claims

Partys Constitution with respect to modifications of local bylaws. 24

Also any certification requirement is met if the information or certification is signed by

Evans depo, p. 144, l. 19 to p. 146, l. 1-3.

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Utah Code 20A-8-403.

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LIKELIHOOD OF SUCCESS ON THE MERITS

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Aldridge v. Williams, 44 U.S. (3 How.) 9, 24 (1845) (emphasis added).

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The States Constitutionally Authorized, Broad Power to Regulate

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Pl.s Comp. (doc. 2) 63, 97, 104, 115.