Utah Republican Party v. Herbert et al
Filing
170
MEMORANDUM DECISION and Order denying 13 Motion for Preliminary Injunction. Signed by Judge David Nuffer on 9/23/15. (jlw)
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,
MEMORANDUM DECISION AND
ORDER DENYING PRELIMINARY
INJUNCTION
Plaintiff and Intervenor,
Case No. 2:14-cv-00876-DN-DBP
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,
District Judge David Nuffer
Magistrate Judge Dustin B. Pead
Defendants.
Utah Republican Party’s (“Party”) amended motion for preliminary injunction
(“Motion”) 1 is DENIED in this order The Party seeks to stay the enforcement and
implementation of Utah Senate Bill 54 (“SB54”) before trial. The Party has challenged SB54 as
a violation of its First Amendment rights of association and free speech and for other reasons.
The parties thoroughly briefed the issues; 2 and the court heard oral argument and ruled from the
bench on April 10, 2015. 3 The Constitution Party of Utah (“Constitution Party”), Plaintiff and
1
Plaintiff’s Amended Motion for a Preliminary Injunction (“Motion”), docket no. 13, filed January 5, 2015.
2
Motion; Plaintiff’s Supplemental Brief in Support of Its Motion for a Preliminary Injunction, docket no. 65, filed
March 23, 2015; Defendant’s Brief in Opposition to Plaintiff’s Amended Motion for Preliminary Injunction, docket
no. 68, filed March 31, 2015; Plaintiff’s Reply in Further Support Its [sic] Amended Motion for a Preliminary
Injunction, docket no. 79, filed April 7, 2015.
3
Minute Entry, docket no. 107, entered April 10, 2015.
Intervenor in this case, did not join in the Motion. The Constitution Party chose to participate in
the Motion on only a limited basis. After a thorough review and consideration of the pleadings,
motion papers, evidence, memoranda and argument and the draft order submitted by the
defendants and objections from the Utah Republican Party and Constitution Party, 4 this order is
entered to reflect that the Motion is DENIED.
TABLE OF CONTENTS
TABLE OF CONTENTS ................................................................................................................ 2
FACTUAL RECORD ..................................................................................................................... 3
A. The Statutes at Issue ............................................................................................................... 3
SB54........................................................................................................................................ 3
Registered Political Parties ..................................................................................................... 4
Qualified Political Parties ....................................................................................................... 6
Primary Elections – RPP Compared to QPP........................................................................... 7
Senate Bill 207 ........................................................................................................................ 7
Statutory Provisions Regarding Displaying Party Affiliation on The Ballot ......................... 8
B. Facts Related to the Party’s Constitutional Claims................................................................ 9
CONCLUSIONS OF LAW .......................................................................................................... 11
A. The Party Has Not Presented A Facial Challenge To SB54 And Such A Challenge Is Not
Likely To Succeed. .............................................................................................................. 12
B. The Party’s As-Applied Challenge to SB54 Is Not Supported by Evidence. ...................... 14
C. The Party is Not Likely to Succeed on the Merits ............................................................... 15
4
Counsel for Defendants was directed to submit a proposed draft of this order by July 10, 2015. See Docket Text
Order (“140 DTO”), docket no. 140, entered June 18, 2015. Defendants complied with this directive. See Notice of
Filing, docket no. 144, filed July 9, 2015. Counsel for Utah Republican Party and counsel for Constitution Party of
Utah were allowed to submit objections to the proposed draft on or before July 17, 2015. See 140 DTO. Counsel for
Constitution Party complied with this instruction, see Objection to Defendants’ Proposed Memorandum Decision
and Order, docket no. 145, filed July 17, 2015, and the Constitution Party’s objections have been considered. The
Utah Republican Party, however, submitted objections five days late without leave of court. See Plaintiff’s
Objections to Defendants’ Proposed Memorandum Decision and Order Denying Preliminary Injunction, docket no.
147, filed July 22, 2015. Although the Party’s counsel indicated the “objections are being filed concurrently with a
motion to accept late brief,” id. at 1, no such motion was filed. This is one of many deadlines the Republican Party’s
counsel has missed in this litigation Nevertheless, the proposed draft was reviewed extensively, in light of the
objections filed, and necessary changes have been made to accurately reflect the ruling made in court April 10,
2015.
2
Requiring Primary Election .................................................................................................. 15
Use of Party’s Symbol on the General Election Ballot......................................................... 17
Interference with Internal Structure of Party ........................................................................ 17
Plurality ................................................................................................................................. 20
Subsection 12(a)—QPP Required to Allow Unaffiliated Voters in Primary ....................... 20
ORDER ......................................................................................................................................... 32
FACTUAL RECORD 5
A. The Statutes at Issue
SB54
1.
SB54, enacted by the Utah State Legislature in the 2014 General Session,
modified the Utah Election Code as it relates to the nomination of candidates, primary and
general elections, and ballots. 6 The sections of the Utah Code that are affected by SB54 include:
20A-1-102, 20A-1-501, 20A-5-101, 20A-6-301 through 305, 20A-9-101, 20A-9-202, 20A-9403, and 20A-9-701. SB54 also enacts new sections 20A-1-103 and 20A-9-405 through 410.
2.
The provisions of SB54 retained Utah’s caucus and convention system and
supplemented the process for selecting candidates by allowing candidates to be nominated to the
primary ballot when they meet threshold requirements for voter support as evidenced by a
candidate gathering the requisite number of signatures. 7
5
The Factual Record is drawn from largely undisputed facts presented in the materials considered, and apply as of
the date of the preliminary injunction hearing, April. 10, 2015. The record is preliminary and subject to revision in
other later proceedings, including trial.
6
See S.B. 54, 2014 Gen. Sess., attached as Exhibit 1 to Motion, docket no. 13-1, filed January 5, 2015 (amending
portions of Utah Code tit. 20A, chs., 1, 5, 6, 9, and enacting portions of Utah Code tit. 20A chs. 1, 9.).
7
Utah Code Ann. §§ 20A-9-405, 408.
3
3.
SB54 allows political parties to choose to become a “Registered Political Party”
(“RPP”) 8 or a “Qualified Political Party” (“QPP”). 9
Registered Political Parties
4.
Pursuant to Utah Code title 20A, chapter 8, an RPP is an organization of voters
that: participated in the last regular general election and in at least one of the last two regular
general elections, polled a total vote for any of its candidates for any office equal to 2% or more
of the total votes cast for all candidates for the United States House of Representatives in the
same regular general election; or has complied with the petition and organizing procedures of
Utah Code title 20A, chapter 8. 10
5.
Under SB54, to qualify to nominate candidates for an upcoming election, an RPP
must comply with Utah Code Section 20-9-403. Section 20-9-403 requires an RPP to “either
declare [its] intent to participate in the next primary election, or declare that the [RPP] chooses
not to have the names of its candidates for elected office featured on the ballot at the next general
election.” 11 This is done by filing a statement with the Lt. Governor no later than 5pm on
November 15 of the preceding odd-numbered year. 12
6.
If an RPP chooses to participate in the election nomination process, it must also
“identify one or more registered political parties whose members may vote” for the RPP’s
candidates and “whether or not persons identified as unaffiliated with a political party may vote”
8
Id. § 20A-9-403.
9
Id. § 20A-9-406.
10
Id. § 20A-8-101(4).
11
Id. § 20A-9-403(2)(a)(i).
12
Id. § 20A-9-403(2)(b).
4
for the RPP’s candidates. 13 An individual may not file a declaration of candidacy for a RPP of
which the individual is not a member. 14
7.
Under SB54, a candidate for elective office seeking the nomination of an RPP
may gain access to that party’s primary ballot by demonstrating they have a reasonable amount
of party voters’ support by completing a nomination petition process and obtaining
certification. 15
8.
The Office of the Lieutenant Governor has stated that candidates for a RPP “may
only collect signatures from voters who are registered with the same political party and who
reside in the district or area of the office the candidate seeks. Signatures will not be counted from
voters who are unaffiliated, who affiliate with other parties, living outside of the district or area,
or those who are not registered. 16
9.
Earlier this year, SB54 was amended by the Utah State Legislature to clarify that
any candidate seeking an RPP’s nomination must be a member of the registered political party to
appear as the candidate in the primary election, except to the extent the RPP permits otherwise
under the RPP’s bylaws. 17
13
Id. § 20A-9-403(2)(a)(ii).
14
S.B. 207, 2015 Gen. Sess., Enrolled Copy at 23:618-632, Exhibit 7 to Defendant’s Index of Exhibits Supporting
Memorandum in Opposition to Plaintiff’s Amended Motion for Preliminary Injunction, docket no. 69-7, filed April
1, 2015.
15
Utah Code Ann. § 20A-9-403(3)(b)-(4)(a)(i); Id. § 20A-9-405.
16
Office of the Lieutenant Governor, Senate Bill 54 (2014): Frequently Asked Questions (“SB54 FAQ”) at 6, ¶ 2.8,
Defendant’s Exhibit 5, docket no. 69-5, filed April 1, 2015.
17
S.B. 207 at 23:618-632 (amending, among other sections, Utah Code Ann. § 20A-9-201).
5
Qualified Political Parties
10.
A QPP is a registered political party that: a) allows voters who have not registered
with a political party (“unaffiliated voters”) to vote for their party’s candidates in a primary
election; b) permits a delegate of its party to vote on a candidate’s nomination in the party’s
convention remotely, or provides a procedure for designating an alternative delegate; c) does not
hold the party’s convention before April 1 of an even year; and d) permits members of its own
party to seek nomination by either or both of the following methods: 1) seeking nomination
through the party’s convention process or 2) collecting signatures. 18
11.
Under the QPP provisions, there are two tracks for a person to become a
candidate for placement on the primary ballot: 1) the convention nomination track; and 2) the
signature gathering nomination track. Under both of those tracks the statute limits candidates to
members of the party. 19
12.
On the convention nomination track, Utah Code Ann. § 20A-9-407 sets forth the
“requirements for a member of a qualified political party who is seeking the nomination of a
qualified political party.” 20 The remaining provisions of that section refer specifically to “a
member of a qualified political party.”
13.
On the signature gathering track, Utah Code Ann. § 20A-9-408 sets forth “the
requirements for a member of a qualified political party who is seeking nomination of the
18
Utah Code Ann. § 20A-9-101(12)(a)-(d).
19
Id. §§ 20A-9-201(1), 407(1), -408(1); see also S.B. 207 at 23:618-632.
20
Utah Code Ann. § 20A-9-407.
6
qualified political party.” 21 The statute restricts candidate eligibility to those who are “a member
of a qualified political party.” 22
Primary Elections – RPP Compared to QPP
14.
Regarding primary elections, SB54 provides that a participating RPP determines
who may vote “for the registered political party’s candidates.” 23 If, however, a party chooses to
designate itself as a QPP, it must “permit[] voters who are unaffiliated with any political party to
vote” for the party’s candidates in the primary election. 24
Senate Bill 207
15.
Senate Bill 207 (“SB 207”) was signed into law on March 27, 2015. SB 207
further clarifies Utah’s Election Code.
16.
Among other things, SB 207 clarified 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.” 25
17.
SB 207 further provides that “an individual may not:
(iii) file 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 party’s bylaws.” 26
21
Id. § 20A-9-408(1); see also S.B. 207 at 23:621-632.
22
Utah Code Ann. § 20A-9-48(1); see also SB54 FAQ at 9, ¶ 3.6.
23
Utah Code Ann. § 20A-9-403(2)(a)(ii).
24
Id. § 20A-9-101(12).
25
S.B. 207 at 23:618-625.
26
Utah Code Ann. § 20A-9-403(8); S.B. 207 at 23:626-632.
7
18.
Accordingly, Utah’s Election Code allows political parties to decide whether a
candidate seeking the party’s nomination must be a member of the party.
Statutory Provisions Regarding Displaying Party Affiliation on The Ballot
19.
The Utah Election Code allows an RPP or QPP to have the names of its
candidates for elective office featured with party affiliation on the ballot at a regular general
election. 27
20.
If an RPP or QPP chooses to have the State feature the names of its candidates for
elective office with the party’s affiliation on the ballot at a regular general election, then the RPP
or QPP must comply with the requirements of section 20A-9-403 of the Utah Election Code and
“nominate its candidates for elective office in the manner prescribed in [that] section.” 28
21.
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.” 29
22.
The candidate who receives the most votes in the party’s primary election is listed
on the general election ballot as the party’s candidate: “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
27
Utah Code Ann. § 20A-9-403(1)(b) (emphasis added); see also id. § 20A-9-406(5).
28
Id. § 20A-9-403(1)(b).
29
Id. § 20A-9-403(5)(a).
8
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” 30
B. Facts Related to the Party’s Constitutional Claims
23.
The Utah Republican Party is an unincorporated association registered under Title
20A, chapter 8 of the Utah Code.
24.
James Evans currently serves as the Republican Party Chairman.
25.
Anyone who registers to vote and declares an affiliation with the Republican
Party is a member of the Party, and is entitled to vote and participate in Republican Party
elections and meetings. 31
26.
There is no “litmus test or required belief” in order to be a “Republican.” 32
27.
The Party’s bylaws require that neighborhood caucus meetings begin with a
prayer, the recitation of the pledge of allegiance, and the reading of the Party’s platform. 33
28.
Candidates seeking the Party’s nomination to elected office are required to sign a
disclosure statement, pledging their willingness to adhere to the Party’s platform.
29.
The penalty for not filling out the candidate disclosure statement regarding
fidelity to the platform is that the delegates who attend the Party’s convention are informed that
the candidate did not sign the disclosure statement, but such a deficit does not exclude a
“Republican” from being a candidate. 34
30
Id. § 20A-6-301(2).
31
Deposition of James Evans (“Evans Dep.”) at 32:2-5, Defendant’s Exhibit 4, docket no. 69-4, filed April 1, 2015.
32
Evans Dep. at 37:23-39:11.
33
Id. at 151:8-15.
34
Id. at 53:22-54:5; 100:13-18.
9
30.
The Party is a registered political party, as defined by Utah law predating the
passage of SB54.
31.
The Party has not made any certification to indicate its intent to participate in the
2016 election as a registered political party, or a qualified political party.
32.
The Party’s annual convention is scheduled for August 15, 2015 at which time the
Party may decide whether the Party will certify as a QPP or RPP under the statute. 35
33.
Mr. Evans has stated that it would be an expensive and laborious task to amend
the Party’s internal bylaws and constitution to comply with the provisions of SB54. 36
34.
To date, the Party’s governing body has not approved the changes to the Party’s
bylaws and constitution necessary to comply with SB54, instead opting to challenge the
constitutionality of the statute.
35.
The Party has moved for a preliminary injunction seeking to stay the enforcement
and implementation of SB54. 37
36.
The Party claims SB54 violates its first amendment rights of association and free
37.
The Party’s Motion raised several issues with the QPP and RPP procedures as
speech.
they apply to the Party under SB54, including 1) the claimed burden of requiring a QPP to allow
unaffiliated voters to violate in the Party’s primary; 2) the possibility that the Party’s candidate
35
Id. at 144:19-146:3.
36
Declaration of James Evans (“Evans Decl.”) ¶¶ 79-84, attached as Exhibit C to Motion, docket no. 13-3, filed
January 5, 2015.
37
Motion at 25.
10
could be elected by a plurality as opposed to a majority of voters; and 3) the State substituting its
judgment for the Party’s with respect to the Party’s internal procedures and governance.
CONCLUSIONS OF LAW
To obtain a preliminary injunction, the movant must show “(1) a likelihood of success on
the merits; (2) a likely threat of irreparable harm to the movant; (3) the harm alleged by the
movant outweighs any harm to the non-moving party; and (4) an injunction is in the public
interest.” 38 Where the moving party can show that the second, third, and fourth factors “tip
strongly in [its] favor,” the first factor is satisfied “by showing that questions going to the merits
are so serious, substantial, difficult, and doubtful as to make the issue ripe for litigation and
deserving of more deliberate investigation.” 39
Here, the second and fourth factors weigh in favor of the Party. Violation of core
constitutional rights is almost always an irreparable harm. 40 And the public has a strong interest
in seeing that elections are not subject to any post-election challenges. However, the third factor
does not tip in either party’s favor. The State faces the harm of having its law invalidated, which
would place the election system in Utah in jeopardy. Therefore, while the Party has shown that
two of the factors tip in its favor, it has not shown that all three tip “strongly” in its favor.
Accordingly, the Party fails to meet the necessary requirements to relax the “likelihood of
success” factor, and will be required to show likelihood of success on the merits in order to
38
Hobby Lobby Stores, Inc. v. Sebelius, 723 F.3d 1114, 1128 (10th Cir. 2013).
39
Id.
40
Awad v. Ziriax, 670 F.3d 1111, 1131 (10th Cir. 2012) (“[W]hen an alleged constitutional right is involved, most
courts hould that no further showing of irreparable injury is necessary.”).
11
obtain a preliminary injunction. As discussed below, the Party cannot make this showing at this
preliminary stage.
At the outset, it is important to note that the court’s ruling is preliminary. “[A]
preliminary injunction is an extraordinary remedy; it is the exception rather than the rule.” 41
First, the Party’s facial challenge will be discussed, even though the Party has not made such a
challenge. Then, the Party’s as-applied challenge will be discussed. Finally, the Party’s failure to
show likelihood of success on the merits on the current state of the record will be discussed.
A. The Party Has Not Presented A Facial Challenge To SB54 And Such A
Challenge Is Not Likely To Succeed.
The Party has not pleaded that the statute is facially unconstitutional, having instead
chosen to bring its claims exclusively as an “as-applied” challenge. 42 Nevertheless, had the
Party chosen to challenge the statute facially, that claim would have failed.
“Facial challenges are strong medicine. Article III of the Constitution ensures that federal
courts are not roving commissions assigned to pass judgment on the validity of the nation’s laws,
but instead address only specific ‘cases’ and ‘controversies.’” 43 As the Supreme Court has
observed, “facial challenges are best when infrequent. . . . Although passing on the validity of a
law wholesale may be efficient in the abstract, any gain is often offset by losing the lessons
taught by the particular, to which common law method normally looks.” 44 “Because facial
challenges push the judiciary towards the edge of its traditional purview and expertise, courts
42
Compl. ¶ 110, docket no. 2, filed December 1, 2014.
42
Compl. ¶ 110, docket no. 2, filed December 1, 2014.
43
Ward v. Utah, 398 F.3d 1239, 1246 (10th Cir. 2005) (quotation marks and citation omitted).
44
Sabri v. United States, 541 U.S. 600, 608-09 (2004) (internal citations omitted).
12
must be vigilant in applying the most exacting analysis to such claims.” 45 The Supreme Court
has explained that in the area of election law:
Facial challenges are disfavored for several reasons. Claims of facial invalidity
often rest on speculation. As a consequence, they raise the risk of “premature
interpretation of statutes on the basis of factually barebones records.” Facial
challenges also run contrary to the fundamental principle of judicial restraint that
courts should neither ‘“anticipate a question of constitutional law in advance of
the necessity of deciding it”’ nor ‘“formulate a rule of constitutional law broader
than is required by the precise facts to which it is to be applied.’” Finally facial
challenges threaten to short circuit the democratic process by preventing laws
embodying the will of the people from being implemented in a manner consistent
with the Constitution.
We must keep in mind that ‘“[a] ruling of
unconstitutionality frustrates the intent of elected representatives of people.”’ 46
The Supreme Court has been clear that to succeed in a facial attack “the challenger must
establish that no set of circumstances exists under which the Act would be valid”— an onerous
burden, making it “the most difficult challenge to mount successfully.” 47 On the record presented
by the Party’s Motion, “it cannot be said that no set of circumstances would result in a
constitutional outcome under this statute [SB54].” 48
The Party cannot show a likelihood of success on the merits of a facial challenge because
there are constitutional outcomes under SB54. 49 If the Party chooses to become an RPP: 1) Only
members of the Party can declare candidacy, unless the RPP permits otherwise; 50 2) on petitions
for candidates to gain access to the ballot, only signatures from members of the Party will be
45
Ward, 398 F.3d at 1247 (citing Broadrick v. Oklahoma, 413 U.S. 601, 611-12 (1973)).
46
Washington State Grange v. Washington State Republican Party, 552 U.S. 442, 450-51 (2008) (citations omitted).
47
United States v. Salerno, 481 U.S. 739, 745 (1987).
48
Transcript of Proceedings (“Tr.”) April 10, 2015 at 122:15-19, docket no. 117, filed April 24, 2015.
49
Tr. at 57:4-5; 57:23-25; 122:16-24; 127:1-2.
50
S.B. 207 at 23:626-32 (“an individual may not . . . (iii) file a declaration of candidacy for a [RPP] of which the
individual is not a member, except to the extent that the [RPP] permits otherwise . . . .”).
13
counted by the Lieutenant Governor’s Office; 51 3) the Party can control who votes in its primary
and close its primary to whomever it chooses not to associate with; 52 4) only candidates that
prevail in the Party’s primary are entitled to have the Party symbol next to their names on the
general election ballot; 53 5) the Party remains free to hold a convention and have its delegates
identify its candidate of choice; and 6) the Party is free to endorse, campaign, fundraise, lobby
and advertise on behalf of its chosen candidates.
Thus, the RPP path to the general election ballot imposes no unconstitutional burden on
the Party’s rights of association or free speech. Because the RPP path to the ballot does not
severely burden the Party’s constitutional rights, a facial challenge to the statute would likely
fail.
B. The Party’s As-Applied Challenge to SB54 Is Not Supported by Evidence.
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.” 54 In Washington State Grange, the Supreme Court noted that had the
plaintiff brought an as-applied challenge, the plaintiff would have to develop an “evidentiary
record against which to assess their assertions . . . .” 55 Thus, the Party bears the burden of
51
SB54 FAQ at 6, ¶ 2.8.
52
Utah Code Ann. § 20A-9-403(2)(a)(ii) (requiring RPP that intends to participate in an upcoming primary election
to file a statement with the Lieutenant Governor’s Office “identify[ing] one or more registered political parties
whose members may vote for the [RPP]’s candidates and whether or not persons identified as unaffiliated with a
political party may vote for the [RPP]’s candidates . . . .”).
53
Id. § 20A-6-301(1)(a)(ii) (ensuring that general election ballots do not contain symbols or other markings of a
political party, “except for a RPP that has chosen to nominate its candidates in accordance with Section 20A-9403”).
54
Colo. Right To Life Comm. v. Coffman, 498 F.3d 1137, 1146 (10th Cir. 2007).
55
552 U.S. at 455 (citing Timmons v. Twin Cities Area New Party, 520 U.S. 351, 375-76 (1997)).
14
producing evidence in support of its claims. The Party has not met this burden because, as of
the date of the hearing, the Party had not chosen whether it would be a QPP or an RPP. Without
designating itself as directly in a path—particularly the QPP path—the as-applied challenge is
not ripe. 56
C. The Party is Not Likely to Succeed on the Merits
“To assess the constitutionality of a state election law, we first examine whether it
burdens rights protected by the First and Fourteenth Amendments.” 57 “Election regulations that
impose a severe burden on associational rights are subject to strict scrutiny, and [they are upheld]
only if they are ‘narrowly tailored to serve a compelling state interest.’” 58 The Party argues that
SB54 contains several regulations that impose a “severe burden” on the Party’s associational
rights, but none of the asserted burdens are severe except one, which is not ripe for review since
the evidence now presented by the Party cannot sustain an as-applied challenge to the QPP path
of SB54. Each of the Party’s arguments will be addressed below.
Requiring Primary Election
The Party contends that the State cannot require it to select its candidates through a
primary election. However, the Party’s contention that it has a constitutional right to select its
candidates through the caucus and convention system is not correct. For more than forty years
the United States Supreme Court has recognized 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
56
Tr. 53:6-9; Tr. 122:22-25 (“[B]ecause the [P]arty has not elected the QPP route, which in my view is the only
possible unconstitutional burden and outcome, we’re not ripe for an as applied challenge.”).
57
Eu v. San Francisco County Democratic Central Committee, 489 U.S. 214, 222 (1989).
58
Washington State Grange, 552 U.S. at 451.
15
intraparty competition is resolved in a democratic fashion.” 59 Accordingly, the State may require
political parties to use the primary format for selecting their nominees. 60
It is true that “[a] political party has a First Amendment right to limit its membership as it
wishes, and to choose a candidate-selection process that will in its view produce the nominee
who best represents its political platform.” 61 As the Supreme Court has noted, however, “[t]hese
rights are circumscribed . . . when the State gives the party a role in the election process,” such as
“by giving certain parties the right to have their candidates appear with party endorsement on the
general-election ballot.” 62 Where, as here, the State assumes this role, “the State acquires a
legitimate governmental interest in assuring the fairness of the party's nominating process,
enabling it to prescribe what that process must be.” 63 In one case, it was held that a state has a
“compelling” state interest in “eliminating the fraud and corruption that frequently accompanied
party-run nominating conventions.” 64
The State administers the Party’s primary election and allows the Party’s symbol to
appear on the general election ballot. The State pays for and administers the Party’s primary as
well as general elections 65 to ensure that candidates are selected through an open and democratic
59
New York State Bd. of Elections v. Lopez Torres, 552 U.S. 196, 203 (2008) (quoting with approval American
Party of Tex. v. White, 415 U.S. 767, 781 (1974)); see also California Democratic Party v. Jones, 530 U.S. 567, 572
(2000) (same); Clingman v. Beaver, 544 U.S. 581, 593 (2005) (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).
60
Tr. 123:5-6.
61
Lopez Torres, 552 U.S. at 202.
62
Id. at 203.
63
Id.
64
Alaskan Independence Party v. Alaska, 545 F.3d 1173, 1180 (9th Cir. 2008).
65
The State pays approximately $3 million for each statewide election. See Mark Thomas Deposition 177:1-3,
Defendant’s Exhibit 3, docket no. 69-3, filed April 1, 2015.
16
process. Accordingly, the State can constitutionally require the Party to select its candidates
through a primary election and the State can lawfully certify the Party’s candidates who receive
the most votes in the primary election as the candidates to appear on the general election ballot.
Use of Party’s Symbol on the General Election Ballot
The Party also contends that placing the Party’s symbol on the general election ballot to
designate the Party’s candidates violates its rights of free speech. The Party argues that the
Party, not the State, has the exclusive right to use the Party’s symbol to endorse its candidates.
However, there is no protected free speech right to communicate the Party's endorsement on the
general election ballot. Ballots serve primarily to elect candidates, not as forums for political
expression. 66 The Supreme “Court has rejected the notion that the First Amendment confers a
right to use governmental mechanics to convey a message.” 67
Moreover, the Party has not shown it is likely that SB54 “severely burdens” the Party’s
free speech rights. The Party may still hold a convention, campaign for candidates, fundraise,
and endorse any candidate the Party chooses to support. Simply put, the “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.” 68
Interference with Internal Structure of Party
The Party further contends that the provisions of SB54 unconstitutionally interfere with
the Party’s ability to control its internal structure. Specifically, the Party claims SB54’s process
66
Washington State Grange, 552 U.S. at 453 n. 7 (citing Timmons, 520 U.S. at 363).
67
Nevada Com’n on Ethics v. Carigan, 131 S.Ct. 2343, 2351 (2011) (quoting Timmons, 520 U.S. at 362-63; Burdick
v. Takushi, 504 U.S. 428, 438 (1991)).
68
Timmons, 520 U.S. at 361.
17
interferes with the Party’s desire to begin neighborhood caucus meetings with a prayer, a
recitation of the pledge of allegiance and the reading of the Party’s platform. The Party’s stated
purpose in beginning its meetings with prayer, pledge and platform is to remind those in
attendance of the principles the Party stands for and lessen the possibility that the Party’s
nominee may not be a Party member or fully committed to the Party’s ideology.
Contrary to the Party’s contention, however, SB54 does not prevent the Party from
holding neighborhood caucus meetings and conducting those meetings as the Party chooses.
Moreover, not all regulation of a party’s internal processes is prohibited or constitutionally
questionable. 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.” 69 As the
Supreme Court in Clingman stated:
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. 70
The Party’s reliance on Eu 71 is also misplaced. In Eu, the Court considered the
constitutionality of a California state law that banned political parties from “endors[ing],
support[ing], or oppos[ing], any candidate for nomination by that party for partisan office in the
direct primary election.” 72 In addition to restricting the primary activities of the official
governing bodies of political parties, the California statute also regulated the political parties’
69
Clingman, 544 U.S. at 599 (O’Connor, J., concurring).
70
Id., 544 U.S. 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.”).
71
Eu v. San Francisco County Democratic Central Committee, 489 U.S. 214 (1989).
72
Id. at 217.
18
“internal affairs.” 73 “Separate statutory provisions dictate[d] the size and composition of the state
central committees; set forth rules governing the selection and removal of committee members;
fix[ed] the maximum term of office for the chair of the state central committee; require[d] that
the chair rotate between residents of northern and southern California; specif[ied] the time and
place of committee meetings; and limit[ed] the dues parties may impose on members. Violations
of these provisions [were] criminal offenses punishable by fine and imprisonment.” 74 The U.S.
Supreme Court struck down the law as an unconstitutional burden on the California political
parties’ First Amendment rights, such as the right to control its own internal affairs. 75
In contrast to Eu, SB54 does not restrict the ability of political parties to endorse the
candidates of their choice nor does the law directly regulate the internal affairs of the Party.
Significantly, under SB54, the State does not dictate who is allowed to be a member of a political
party. Instead, state law allows all political parties to define membership in accordance with
party rules. A “State political party” is defined as “ . . . all of the persons in Utah who, under
definitions established by the state political party, are members of the registered political
party.” 76 The Utah Republican Party has chosen to define its membership as being “open to any
resident of the state of Utah who registers to vote as a Republican.” 77 Accordingly, it is the
Party’s inclusive definition of membership, as opposed to the provisions contained in SB54, that
creates the possibility that the Party’s nominee may not fully adhere to the Party’s ideology as
expressed in its platform.
73
Id. at 218.
74
Id. at 218-219.
75
Id. at 227, 233.
76
Utah Code Ann. § 20A-8-101(5).
77
Utah Republican Party Const., Art. I C, Defendant’s Exhibit 2, docket no. 69-2, filed April 1, 2015.
19
Moreover, SB207 eliminates the Party’s concern that its nominees may not be members
of the Republican Party. SB207 provides that a candidate may not file a declaration of
candidacy for a political party of which the candidate is not a member, except to the extent that
the political party permits otherwise in the political party’s bylaws. 78 Each candidate is required
to identify, in a sworn statement, the registered political party of which the candidate is a
member, or state the candidate is not a member of a political party. Thus, the Party’s concern that
its nominees will not be members of the Party is unfounded. 79
Plurality
The Party accurately identifies the possibility that, under the provisions of SB54, its
nominee may be elected by a plurality, as opposed to a majority, of its members. However, the
Party presented no legal authority indicating that there is any constitutional deficiency in a
party’s candidate gaining access to the general election ballot based on a plurality vote from a
primary election. 80
Subsection 12(a)—QPP Required to Allow Unaffiliated Voters in Primary
The Party further contends that it is a severe burden on its associational rights to require
the Party to allow unaffiliated voters to vote in its primary elections. 81 The Party is correct. As
set forth above, political parties do not have unfettered freedom to decide every aspect of the
election of the process. But a state may go too far when it forces political parties to associate
78
S.B. 207 at 23:626-32 (“an individual may not . . . (iii) file a declaration of candidacy for a [RPP] of which the
individual is not a member, except to the extent that the [RPP] permits otherwise . . . .”).
79
Moreover, the Party may file objections to a candidate’s declaration of candidacy if the Party believes a candidate
seeking the Party’s nomination is not a member of the Party. See Utah Code. Ann. § 20A-9-202(5).
80
Tr. at 124:25-125:3.
81
See Utah Code Ann. § 20A-9-101(12)(a).
20
with others involuntarily. “[F]reedom to associate for the common advancement of political
beliefs necessarily presupposes the freedom to identify the people who constitute the
association.” 82 And “[i]n no area is the political association’s right to exclude more important
than in its candidate-selection process,” as that process “often determines the party’s positions on
significant public policy issues, and it is the nominee who is the party’s ambassador charged with
winning the general electorate over to its views.” 83
In 1981, the U.S. Supreme Court decided Democratic Party of the United States v.
Wisconsin ex rel. La Follette. 84 In that case, the State of Wisconsin passed an election law that
provided for an open primary, which would “allow non-Democrats—including members of other
parties and independents—to vote in the Democratic primary without regard to party affiliation
and without requiring a public declaration of party preference.” 85 “The voters in Wisconsin’s
‘open’ primary express their choice among Presidential candidates for the Democratic Party’s
nomination; they do not vote for delegates to the National Convention.” 86 The delegates,
however, “under Wisconsin law, are bound to vote at the National Convention in accord with the
results of the open primary election.” 87 In other words, the Wisconsin law forced the Democratic
Party’s delegates to vote at the National Convention according to the results of the open primary
in which non-Democratic Party members cast a ballot. The Supreme Court explained that
82
Democratic Party of U.S. v. Wisconsin ex rel. La Follette, 450 U.S. 107, 122 (1981).
83
Jones, 530 U.S. at 568. See also Tashjian v. Republican Party, 479 U.S. 208, 216 (1986) (holding that 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”).
84
La Follette, 450 U.S. 107.
85
Id. at 110-111.
86
Id. at 111-12.
87
Id. at 112.
21
[o]n several occasions this Court has recognized that the inclusion of persons
unaffiliated with a political party may seriously distort its collective decisions—
thus impairing the party’s essential functions—and that political parties may
accordingly protect themselves from intrusion by those with adverse political
principles. 88
The La Follette Court went on to hold that “a State, or a court, may not constitutionally
substitute its own judgment for that of the Party” 89 and said that “the interests advanced by the
State [preserving integrity of electoral process, providing secrecy of the ballot, increasing voter
participation, and preventing harassment of voters] do not justify its substantial intrusion into the
associational freedom of members of the National Party.” 90 The Supreme Court ultimately struck
down the Wisconsin law as unconstitutional.
Five years later, in Tashjian v. Republican Party of Connecticut, 91 the Supreme Court
addressed the constitutionality of a different state law which required a closed primary. The
Connecticut law “require[ed] voters in any party primary to be registered members of that
party.” 92 Under the Connecticut law, the Republican Party could not, for example, allow
registered independents to vote in the Republican Party’s primary election—even if the
Republican Party wanted Independents to vote in the primary. The state law simply would not
allow non-registered voters to vote in the primary.
In striking the Connecticut law down as unconstitutional, the Court wrote that the
Republican “Party’s attempt to broaden the base of public participation in and support for its
activities is conduct undeniably central to the exercise of the right of association. As we have
88
Id. (internal quotation marks omitted).
89
Id. at 124-25.
90
Id. at 125-26.
91
Tashjian v. Republican Party of Connecticut, 479 U.S. 208 (1986).
92
Id. at 210-211.
22
said, the freedom to join together in furtherance of common political beliefs ‘necessarily
presupposes the freedom to identify the people who constitute the association.’” 93 The Supreme
Court concluded that “the State’s enforcement, under these circumstances, of its closed primary
system burdens the First Amendment rights of the Party. The interests which the [State] adduces
in support of the statute are insubstantial . . . .” 94
After La Follette and Tashjian, it appeared that a political party’s First Amendment rights
were strong, and the State had little ability to intrude into a political party’s ability to associate
with those whom the party desired to associate.
Over a decade later, in 1997, the Supreme Court again took up the issue of political
parties’ First Amendment rights of association in Timmons v. Twin Cities Area New Party. 95 In
that case, Minnesota passed a law prohibiting candidates from appearing on the ballot as a
candidate for more than one political party (the prohibition is known as a “fusion ban”). 96 A
Minnesota State Representative, Andy Dawkins, was nominated to represent the Minnesota
Democratic-Farmer-Labor Party in the upcoming election. 97 A separate political party—the
“New Party”—selected Dawkins as their candidate for the same office for the same election.” 98
“Neither Dawkins nor the DFL objected, and Dawkins signed the required affidavit of candidacy
for the New Party.” 99 However, due to the fusion ban, Minnesota election officials refused to
93
Id. at 214 (quoting La Follette, 450 U.S. at 122).
94
Tashjian, 479 U.S. at 225.
95
Timmons v. Twin Cities Area New Party, 520 U.S. 351 (1997).
96
Id. at 353-54.
97
Id. at 354.
98
Id.
99
Id.
23
accept the New Party’s nominating petition, so the New Party filed suit “contending that
Minnesota’s anti-fusion laws violated the party’s associational rights under the First and
Fourteenth Amendments.” 100
The Timmons Court first explained that “[t]he First Amendment protects the right of
citizens to associate and to form political parties for the advancement of common political goals
and ideas.” 101 “On the other hand,” the Court explained, “it is also clear that States may, and
inevitably must, enact reasonable regulations of parties, elections, and ballots to reduce electionand campaign-related disorder.” 102 The Court explained the test in determining constitutionality
of a state law that burdens a party’s associational rights:
When deciding whether a state election law violates First and Fourteenth
Amendment associational rights, we weigh the character and magnitude of the
burden the State’s rule imposes on those rights against the interests the State
contends justify that burden, and consider the extent to which the State’s concerns
make the burden necessary. Regulations imposing severe burdens on plaintiff’s
rights must be narrowly tailored and advance a compelling state interest. Lesser
burdens, however, trigger less exacting review, and a State’s important regulatory
interests will usually be enough to justify reasonable, nondiscriminatory
restrictions. 103
The Court in Timmons reasoned that the New Party had a right to select its own
candidate, but it was not “absolutely entitled” to have Dawkins appear on the ballot as the New
Party’s nominee. In other words, “[t]hat a particular individual may not appear on the ballot as a
particular party’s candidate does not severely burden that party’s associational rights.” 104
Therefore, because Minnesota’s fusion ban did not involve “regulation of political parties’
100
Id. at 354-55.
101
Id. at 357.
102
Id. at 358.
103
Id. (internal quotation marks and citations omitted).
104
Id. at 359.
24
internal affairs and core associational activities,” it was unlike Tashjian and other prior cases. 105
The Court concluded that
Minnesota’s laws do not restrict the ability of the New Party and its members to
endorse, support, or vote for anyone they like. The laws do not directly limit the
party’s access to the ballot. They are silent on parties’ internal structure,
governance, and policymaking. Instead, these provisions reduce the universe of
potential candidates who may appear on the ballot as the party’s nominee only by
ruling out those few individuals who both have already agreed to be another
party’s candidate and also, if forced to choose, themselves prefer that other party.
They also limit, slightly, the party’s ability to send a message to the voters and to
its preferred candidates. We conclude that the burdens Minnesota imposes on the
party’s First and Fourteenth Amendment associational rights—though not
trivial—are not severe. 106
Weighing the burden of Minnesota’s law against the State interests, the Court found that
the State interests were sufficient to uphold the law. The Court held that “[s]tates certainly have
an interest in protecting the integrity, fairness, and efficiency of their ballots and election
processes as means for electing public officials.” 107 The Court further held that “[s]tates also
have a strong interest in the stability of their political systems.” 108 Because the burdens imposed
by Minnesota’s law were not severe, the State was not required to “narrowly tailor the means it
chooses to promote ballot integrity.” 109 The law was upheld as constitutional. 110
The Supreme Court’s next encounter with political parties’ associational rights came in
2000, in California Democratic Party v. Jones. 111 In Jones, California voters had passed an
105
Id. at 360.
106
Id. at 363.
107
Id. at 364.
108
Id. at 366.
109
Id. at 365.
110
Id. at 370.
111
California Democratic Party v. Jones, 530 U.S. 567 (2000).
25
initiative called Proposition 198 that allowed a “blanket primary,” in which each voter’s ballot in
the primary election would list every candidate running for a political office regardless of party
affiliation and the voter would be allowed to choose freely among them. 112 Four political parties
(the California Democratic Party, the California Republican Party, the Libertarian Party of
California, and the Peace and Freedom Party) brought suit, arguing that Proposition 198 violated
their First Amendment rights of association. 113
The Jones Court recognized that “States have a major role to play in structuring and
monitoring the election process, including primaries[,]” and “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.” 114 The Court also recognized that “a State may require parties
to demonstrate ‘a significant modicum of support’ before allowing their candidates a place on
that ballot.” 115 The Court further recognized that “a State may require party registration a
reasonable period of time before a primary election.” 116 But the Court also said this:
What we have not held, however, is that the processes by which political parties
select their nominees are . . . wholly public affairs that States may regulate freely.
To the contrary, we have continually stressed that when States regulate parties’
internal processes they must act within limits imposed by the Constitution.117
Citing to Tashjian and La Follette, respectively, the Jones Court went on to explain that
“the First Amendment protects ‘the freedom to join together in furtherance of common political
112
Id. at 569-70
113
Id. at 571.
114
Id. at 572.
115
Id.
116
Id.
117
Id. at 572-73.
26
beliefs,’ which ‘necessarily presupposes the freedom to identify the people who constitute the
association, and to limit the association to those people only.’” 118 The Court expounded on this
idea by noting that
That is to say, a corollary of the right to associate is the right not to associate.
Freedom of association would prove an empty guarantee if associations could not
limit control over their decisions to those who share the interests and persuasions
that underlie the association’s being.
...
In no area is the political association’s right to exclude more important than in the
process of selecting its nominee. That process often determines the party’s
positions on the most significant public policy issues of the day, and even when
those positions are predetermined it is the nominee who becomes the party’s
ambassador to the general electorate in winning it over to the party’s views.” 119
The Jones Court reiterated that prior “cases vigorously affirm the special place the First
Amendment reserves for, and the special protection it accords, the process by which a political
party select[s] a standard bearer who best represents the party’s ideologies and preferences.” 120
“The moment of choosing the party’s nominee, we have said, is the crucial juncture at which the
appeal to common principles may be translated into concerted action, and hence to political
power in the community.” 121
With these principles in mind, the Jones Court struck down California’s blanket primary,
holding that it violated the political parties’ associational rights because it “forces political
parties to associate with—to have 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
118
Id. at 574.
119
Id. at 574-75 (emphasis added).
120
Id. at 575 (alteration in original) (internal quotation marks omitted).
121
Id.
27
with a rival.” 122 “In this respect, it is qualitatively different from a closed primary” because
“[u]nder that system, even when it is made quite easy for a voter to change his party affiliation
the day of the primary, and thus, in some sense, to ‘cross over,’ at least he must formally become
a member of the party; and once he does so, he is limited to voting for candidates of that
party.” 123
Under California’s blanket primary system, however, “the prospect of having a party’s
nominee determined by adherents of an opposing party [was] far from remote—indeed, it [was] a
clear and present danger.” 124 Because of this, the Court found the burden to be “severe” and not
narrowly tailored to serve a compelling state interest. 125
California argued that even under the blanket primary system, political parties were “free
to endorse and financially support the candidate of their choice in the primary.” 126 But the Court
rejected this argument, making clear that “[t]he ability of the party leadership to endorse a
candidate is simply no substitute for the party members’ ability to choose their own nominee.” 127
In the end, the California blanket primary was held unconstitutional because it “forc[ed] political
parties to associate with those who do not share their beliefs.” 128
122
Id. at 577 (emphasis added).
123
Id. (emphasis in original).
124
Id. at 578.
125
Id. at 581-82; id. at 585-86.
126
Id. at 580.
127
Id.
128
Id. at 586 (emphasis added).
28
In 2005, the Supreme Court again faced the question of political parties’ rights of
association in Clingman v. Beaver. 129 There, the State of Oklahoma enacted a law providing for a
“semiclosed” primary, “in which a political party may invite only its own party members and
voters registered as Independents to vote in the party’s primary.” 130 The Libertarian Party of
Oklahoma (“LPO”), along with several Republican and Democratic voters, 131 sued, arguing that
the law violated its right to freely associate under the First Amendment. 132 The Court disagreed
with the LPO and upheld the Oklahoma law because, unlike some of the prior cases such as La
Follette, Tashjian, and Jones, the Oklahoma law did not “compel the LPO’s association with
unwanted members or voters[.]” 133 Further, “[a]s in Timmons, Oklahoma’s law [did] not regulate
the LPO’s internal processes, its authority to exclude unwanted members, or its capacity to
communicate with the public.” 134 Therefore, the law was not a “severe” burden on the political
party because, rather than force association with unwanted members or voters, the law
disallowed association with a “boundless” pool of voters. 135 The law was upheld as
constitutional. 136
The concept that emerges from these cases is that, while a State has the authority to
regulate elections and even require that political parties hold a primary election, it may not force
a political party to allow unaffiliated voters in its primary election. Such a requirement is a
129
Clingman v. Beaver, 544 U.S. 581 (2005).
130
Id. at 584.
131
Id. at 585.
132
Id. at 584.
133
Id. at 587.
134
Id. at 590.
135
Id. at 589.
136
Id. at 598.
29
“severe” burden on the political party’s First Amendment rights, and will only be upheld if it is
narrowly tailored to a compelling state interest.
Here, subsection 20A-9-101(12)(a) provides that in order to become a QPP, a political
party must “permit[] voters who are unaffiliated with any political party to vote for the registered
political party’s candidates in a primary election.” 137 This provision falls squarely in line with
the cases above that held forced association provisions in other state laws unconstitutional as
severe burdens on political parties. The Party, if it chooses to be a QPP, will then be required to
allow voters who are unaffiliated with any political party to vote in the Party’s primary election.
Therefore, unlike Clingman, which prohibited political parties from allowing too many voters in
its voting pool, subsection 12(a) affirmatively requires the Party to accept votes from those with
whom the Party may choose not to associate. This mandate of association is in direct contrast to
the provisions for an RPP under SB54, which allow the Party to identify “one or more registered
political parties whose members may vote for the registered political party’s candidates and
whether or not persons identified as unaffiliated with a political party may vote for the registered
political party’s candidates . . . .” 138 Thus, under SB54, a political party that chooses to be an
RPP has the ability to keep unaffiliated voters out of its primary election, while a political party
that chooses to be a QPP may not. This is a “severe” burden on the Party.
The State contends that any burden imposed by allowing unaffiliated voters to vote in the
Party’s primary is outweighed by the governmental interests that attach to 1) increasing voter
participation; 2) increasing candidates’ access to the ballot; and 3) fostering a more open and
137
Utah Code Ann. § 20A-9-101(12)(a).
138
Utah Code Ann. § 20A-9-403(2)(a)(ii).
30
honest democratic system of electing people to public office. However, interests such as these
have been advanced as “compelling” and rejected by the Supreme Court in the cases reviewed
above. 139 Thus, if an as-applied challenge were brought, subsection 12(a) would likely be struck
down as an unconstitutional burden on the Party’s associational rights, which is not outweighed
by any “compelling” interest of the State.
The State contends that the Party is not forced to be a QPP and, thus, SB54 does not force
the party to associate with unaffiliated voters. The State is incorrect. In essence, the State’s
argument is that the Party has a “choice” to be an RPP which can disallow unaffiliated voters in
its primary election, or be a QPP and give up its “corollary” First Amendment right not to
associate with unaffiliated voters. 140 The State has not shown it is likely to succeed in this
argument if an as-applied challenge were brought against subsection 12(a).
At this stage, however, the Party’s “as-applied” challenge is not ripe. The Party has not
yet decided whether it will become a QPP and, thereby, be required to allow unaffiliated voters
to participate in its primary. No elections have been conducted under the new law and, thus, no
evidence was presented as to what impact, if any, SB54 will have on the Party. And because an
alternative path exists that is constitutional, a facial challenge to SB54, even if pled, cannot
succeed. While there may be further development of the record, the Party has not presented
evidence to demonstrate its constitutional rights of association are severely burdened and, thus,
has not demonstrated it is likely to prevail on the merits. Accordingly, at this stage, no
injunction will issue against the State prohibiting its implementation and enforcement of SB54.
139
See, e.g., Jones, 530 U.S. at 582-86 (rejecting state’s asserted “compelling” interests).
140
See id. at 574 (“[A] corollary of the right to associate is the right not to associate.”).
31
ORDER
Based upon the Party’s Amended Motion for Preliminary Injunction, the argument and
evidence received at the April 10, 2015 hearing, the pleadings and papers on file with the Court,
and for good cause shown, IT IS HEREBY ORDERED that the Party’s Amended Motion for
Preliminary Injunction 141 is DENIED.
Dated September 23, 2015.
BY THE COURT:
____________________________
David Nuffer
United States District Judge
141
Plaintiff’s Amended Motion for a Preliminary Injunction, docket no. 13, filed January 5, 2015.
32
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