United Utah Party et al v. Cox

Filing 46

MEMORANDUM DECISION AND ORDER granting 5 Motion for TRO; granting 5 Motion for Preliminary Injunction. Signed by Judge David Nuffer on 8/2/17 (alt)

Case 2:17-cv-00655-DN-PMW Document 46 Filed 08/02/17 Page 1 of 50

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH, CENTRAL DIVISION
UNITED UTAH PARTY, an unincorporated
political association of Utah citizens;
JIM BENNETT, an individual;
DIANE KNIGHT, an individual;
VAUGHN R. COOK, an individual, and
AARON AIZAD, an individual,
Plaintiffs,

MEMORANDUM DECISION
AND ORDER GRANTING
[5] PLAINTIFFS’ MOTION FOR
PRELIMINARY INJUNCTION
Case No. 2:17-cv-00655-DN-PMW
District Judge David Nuffer

v.
SPENCER J. COX, in his official capacity as
the Lieutenant Governor of the State of Utah,
Defendant.

This case arises because former Congressman Jason Chaffetz resigned partway through
his term in office for Utah’s Third Congressional District in the United States House of
Representatives. Plaintiffs seek to have a new political party and its candidate included on the
ballot of the special election set November 7, 2017 to fill the currently vacant seat (the “Special
Election”).
The United Utah Party (“UUP”) is newly founded. Jim Bennett is a potential UUP
candidate for the vacant congressional seat. The other three plaintiffs are Utah voters (one
registered Democrat, one registered Republican, and one unaffiliated) with an interest in voting
for a UUP candidate for office. 1
Plaintiffs United Utah Party, Jim Bennett, Diane Knight, Vaughn Cook, and Aaron Aizad
(“Plaintiffs”) filed a Motion for Temporary Restraining Order and Preliminary Injunction (the

1

Verified Complaint ¶¶ 3–6, docket no. 2, filed June 21, 2017.

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“Motion”) 2 on June 21, 2017. Plaintiffs seek to enjoin the Lieutenant Governor (the “Lt.
Governor”) of the State of Utah (the “State”) from “failing to include the nominee of the United
Utah Party on the ballot in the special election to be held on November 7, 2017, in the Third
Congressional District.” 3 Plaintiffs contend that the Lt. Governor’s Special Election deadlines
and procedures (the “Special Election Procedures”) effectively barred UUP or any other new
political party formed in response to the vacancy in the congressional office from participating in
the Special Election, which violates Plaintiffs’ First and Fourteenth Amendment rights.
No temporary restraining order was issued 4 because the Lt. Governor received notice of
the Motion, and the parties briefed the Motion on an expedited briefing schedule. 5 The parties
presented oral argument at a hearing on the Motion. 6
Based on the current record, a preliminary injunction is GRANTED. Under the standard
for constitutional challenges to state election laws articulated by the United States Supreme
Court, the Special Election Procedures violate the First and Fourteenth Amendments. The
Constitution guarantees the freedom to associate in political parties for the advancement of
beliefs and ideas. The State’s interests do not require or justify effectively barring UUP and its
candidate, Mr. Bennett, from participating in the Special Election as a new political party.
Therefore, the Lt. Governor is ordered to include Mr. Bennett as the UUP candidate in
the Special Election.

2

Docket no. 5, filed June 21, 2017.

3

Verified Complaint. Prayer for Relief, ¶ 3 at 12. The Motion seeks to “enjoin the Lieutenant Governor from
refusing to include the United Utah Party’s nominee, Jim Bennett, on the ballot in the special election to be held on
November 7, 2017, in the Third Congressional District.” Motion at 2.

4

Fed. R. Civ. P. 65(b) (requiring a showing “that immediate and irreparable injury, loss, or damage will result to the
movant before the adverse party can be heard in opposition” for a temporary restraining order to issue).

5

Minute Entry for Proceedings Held Before Judge David Nuffer, docket no. 12, filed June 26, 2017.

6

Minute Entry for Proceedings Held Before Judge David Nuffer, docket no. 38, filed July 14, 2017; Transcript of
Motion Hearing Held Before Judge David Nuffer on July 14, 2017 (“Transcript”), docket no. 43, filed July 26, 2017.

2

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Table of Contents
Background ..................................................................................................................................... 4
The Law of Congressional Special Elections ..................................................................... 4
The Lt. Governor Oversees Elections and Party Registration. ........................................... 5
Utah’s Election Code Provides a Process for New Political Parties to Register. ............... 6
The Lt. Governor Takes Many Actions Related to Primary Elections When a New
Party is Certified. ........................................................................................ 9
Utah’s Election Code Provides Processes for Candidate Access to the Regular Primary
Election Ballot. ..................................................................................................... 10
Utah’s Election Code Provides Processes for Candidate Access to the Regular General
Election Ballot. ..................................................................................................... 11
Representative Chaffetz’s Resignation Necessitated a Special Election. ......................... 12
The Lt. Governor Established Procedures for a Congressional Special Election. ............ 12
Rationale for Lt. Governor’s May 19 Order ......................................................... 15
The UUP Seeks to Organize and Participate in the Special Election. .............................. 17
Actions Taken Furthering Jim Bennett’s Candidacy ............................................ 20
Summary of UUP and Bennett Actions ................................................................ 21
Lt. Governor Procedures – Special Primary Election to Special General Election .......... 22
Only the Lt. Governor’s Procedures Exclude New Parties from the Special Election. .... 23
The Election Office Review of UUP’s Petition Was Unnecessarily Delayed. ................. 24
Elimination of Election Office Delays Would Have Allowed Full Registration of the
UUP Before the Special Primary Election ............................................................ 26
The Lt. Governor Did Not Consider Participation of New Parties in the Special Election
............................................................................................................................... 28
The State Faces No Significant Burdens in Including the UUP and Its Candidate in the
Special General Election. ...................................................................................... 28
Procedural Standard ...................................................................................................................... 29
Discussion ..................................................................................................................................... 30
A Flexible Legal Standard Applies to Constitutional Challenges to Election Laws. ....... 30
The Special Election Procedures Severely Burden Plaintiffs’ Constitutional Rights....... 32
The Character of the Asserted Injury: The Special Election Procedures Violate
Plaintiffs’ First and Fourteenth Amendments Rights. .............................. 32
The Magnitude of the Asserted Injury: The Special Election Procedures Severely
Burden Plaintiffs’ Rights. ......................................................................... 36
The Interests Asserted by the Lt. Governor Do Not Justify or Necessitate a Complete Bar
to New Political Party Participation in the Special Election................................. 37
The State Interests Identified by the Lt. Governor Are Insufficient. .................... 37
The Lt. Governor Could Have Accommodated Formation of a New Political Party
Before the Special Primary Election. ........................................................ 41
The Facts Demonstrate the UUP and its Candidate Are Ready to Participate in the
Special Election ........................................................................................ 45
State Interests Do Not Justify Exclusion of the UUP from the Special Election. 46
Plaintiffs Will Suffer Irreparable Harm in the Absence of Preliminary Relief. ............... 47
The Balance of Equities Is Strongly in Plaintiffs’ Favor. ................................................. 47
The Injunction Is in the Public Interest. ............................................................................ 48
No Bond Is Required. ....................................................................................................... 48

3

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Order and Preliminary Injunction ................................................................................................. 49
BACKGROUND
The following factual record is preliminary, based on information as of the date of this
Memorandum Decision and Order and is subject to revision based on evidence presented in any
later proceedings, including trial. The record is drawn largely from undisputed facts stipulated by
the parties, 7 together with the Verified Complaint 8 and the statements and exhibits presented in
the briefs submitted in support of 9 and in opposition to 10 the Motion. This Order finds some facts
which the parties identified as disputed. 11 The disputes are resolved after considering the record
and argument at the hearing. 12 The parties’ cooperation in developing a record in a short period
of time is greatly appreciated and has greatly served the public interest.
This background section begins with an explanation of the legal framework of the Special
Election, to enable the facts specific to Plaintiffs’ claims to be understood in that context. There
is no dispute as to the legal framework.
The Law of Congressional Special Elections
Utah Code § 20A-1-502 provides that “[w]hen a vacancy occurs for any reason in the
office of a representative in Congress, the governor shall issue a proclamation calling an election

7

Stipulated Facts, docket no. 19, filed July 7, 2017.

8

Verified Complaint.

9

Motion; Plaintiffs’ Corrected Reply Memorandum in Support of Motion for Temporary Restraining Order and
Preliminary Injunction (“Plaintiffs’ Reply”), docket no. 40, filed July 7, 2017 (correcting, supplementing, and
replacing Reply Memorandum submitted on July 13, 2017, docket no. 31).
10

Defendant’s Memorandum in Opposition to Plaintiffs’ Motion for Temporary Restraining Order and Preliminary
Injunction (the “Opposition”), docket no. 17, filed July 7, 2017; Defendant’s Responses to Plaintiffs’ Additional
Facts and Supplemental Facts, docket no. 35, filed July 13, 2017.
11

Disputed Facts and Issues that May Require Evidence, (“Disputed Facts and Issues”), docket no. 20, filed July 13,
2017.
12

Transcript of Motion Hearing Held before Judge David Nuffer on July 14, 2017 (“Transcript”), docket no. 43,
filed July 26, 2017.

4

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to fill the vacancy.” Under Utah law, the Governor proclaims a special election, and the Lt.
Governor has authority to establish the Special Election Procedures. 13 While Utah has an
extensive election code (with procedures for general elections, special statewide elections, and
local elections), there are no statutory provisions other than Utah Code § 20A-1-502 applicable
to a congressional special election. 14
Unlike a seat in the United States Senate, which can be filled by appointment by the
Governor until the seat is filled at the general election, a vacancy in the House of Representatives
can be filled only by special election. 15 This odd difference between the methods of filling
vacancies arises because vacancies in the office of Representative are filled by an election
mandated by the U.S. Constitution, Article I, section 2, clause 4, while vacancies in the office of
Senator may be filled by appointment of the “executive” of a state, or a special election, under a
process outlined in Amendment XVII, U.S. Constitution, passed in 1913. The ability of a
governor to appoint a Senator, who serves a six-year term, contrasts with the requirement of an
election to fill a vacancy in the office of Representative, who serves for only a two-year term.
This disparity in process explains the prevalence of reported cases involving special elections for
the office of Representative. These disputes arise and must be resolved in compressed
timeframes.
The Lt. Governor Oversees Elections and Party Registration.
The Lt. Governor, who has been sued in his official capacity only, is the Chief Election
Officer for all statewide ballots and elections. 16 In his capacity as Chief Election Officer, the Lt.

13

Utah Code § 20A-1-203; Stipulated Facts ¶ 13.

14

Found by the court; suggested by Disputed Facts and Issues ¶ 1.

15

Utah Code § 20A-1-502.

16

Utah Code § 20A-1-102(28); Stipulated Facts ¶ 7.

5

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Governor exercises general supervisory authority over all elections and direct authority over the
conduct of elections for federal officers. 17 The Lt. Governor is also responsible for reviewing
information submitted by organizations seeking to become political parties in the State of Utah,
and for certifying qualified organizations as newly Registered Political Parties under the Utah
Election Code. 18
The Lt. Governor’s Office includes an Election Office, which is headed by Mark
Thomas, the Director of Elections. 19 In addition to Mr. Thomas, the Election Office is staffed by
three employees: a deputy election director and two assistants. 20 The Election Office may draw
on other employees within the Lt. Governor’s Office for help if the need arises. 21 The Election
Office operates under the Utah Election Code. 22
Due to Utah’s lack of statutory procedures for a congressional special election, the
process for such an election, except for the date of the election which is set by the Governor, is
established entirely by the Lt. Governor.
Utah’s Election Code Provides a Process for New Political Parties to Register.
In Utah, Registered Political Parties may participate in regular primary elections which
select the parties’ candidates for regular general elections. 23 Only candidates nominated by a
Registered Political Party are placed on the general election ballot with a party designation. 24 A

17

Id.

18

Utah Code § 20A-8-103(6); Stipulated Facts ¶ 7.

19

Transcript of Rule 30(b)(6) Deposition of the Office of the Lieutenant Governor: Witness Mark Thomas, dated
July 12, 2017 (“Thomas Dep.”), Exhibit 3 to Plaintiffs’ Reply, docket no. 40-3, at 16–18.
20

Id.

21

Id. at 17–18.

22

Utah Code §§ § 20A-1-101 et seq.

23

Stipulated Facts ¶ 49; Utah Code §§ 20A-9-403(1)(a); 409(2)(b); and 409(2)(c).

24

Stipulated Facts ¶ 15.

6

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“Registered Political Party” is any party that: (1) participated in the last regular general election
and met a certain vote threshold in at least one of the last two regular general elections; or (2) is a
new political party and has complied with the petition and organizational requirements of the
Election Code. 25
The Utah Election Code defines the process for an organization of registered voters to
become a Registered Political Party. To become a Registered Political Party, an organization of
registered voters must file with the Lt. Governor a petition seeking Registered Political Party
status and other documents. 26 The voters may circulate their petition to become a Registered
Political Party “beginning no earlier than the date of the statewide canvass held after the last
regular general election,” which is usually around the end of November of an election year, 27 and
“ending no later than November 30 of the year before the year in which the next regular general
election will be held.” 28 Thus, political party formation must occur principally in a year in which
there is no general election. The petition must be signed by at least 2,000 registered voters. After
the petition is filed with the Lt. Governor, the Lt. Governor is required to determine whether the
required number of voters appears on the petition and review the proposed name and emblem of
the new political party, which appear on the petition, to determine if they are distinguishable
from other parties’ names and emblems, and certify findings “within 30 days.” 29
If the Lt. Governor determines that the petition meets these requirements, the Lt.
Governor then authorizes the filing officer to organize the prospective Registered Political

25

Id. ¶ 14; Utah Code § 20A-8-101(4).

26

Stipulated Facts ¶ 24.

27

Transcript at 15:19-24; 68:23 69:4.

28

Stipulated Facts ¶ 25; Utah Code § 20A-8-103(2)(a).

29

Stipulated Facts ¶ 26; Utah Code § 20A-8-103(6).

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Party. 30 Party organizers are next required to file various items, including the names of the party
officers or governing board with the Lt. Governor. This must be done on or before March 1st of
regular general election year. 31 After the Lt. Governor has reviewed that filing and determined
that all proper procedures have been completed, the Lt. Governor issues a certificate naming the
organization as a Registered Political Party in Utah and informs each county clerk that the
organization is a Registered Political Party in Utah. 32 A Registered Political Party may qualify as
a Qualified Political Party by filings which commit to allow candidates access to the ballot by
convention or by gathering signatures. 33
Utah voters who want to form a newly Registered Political Party ordinarily have months
in advance of a regular general election to organize, prepare party constitutions and bylaws,
gather petition signatures, submit required documentation, and wait for the Lt. Governor to
certify findings and issue a certification of new party status. 34
The Lt. Governor’s Office follows a careful process to ensure election officials are fully
prepared prior to issuing the certification to a political party. 35 This is because “recognition as a
registered political party is a significant event that carries with it privileges and responsibilities”
such as recognition for at least two years, the right to “place the names of its nominee on the
primary and regular general election ballots under the party’s name,” and becoming “a state actor
[that] must act within the boundaries of the Constitution.” 36

30

Stipulated Facts ¶ 27; Utah Code § 20A-8-103(7)(a).

31

Utah Code § 20A-8-106(1).

32

Stipulated Facts ¶ 28; Utah Code § 20A-8-106(2).

33

Utah Code §§ 20A-9-101(12) and 406(1).

34

Stipulated Facts ¶ 29.

35

Found by the court; suggested by Disputed Facts and Issues ¶ 15.

36

Opposition at 11.

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The Lt. Governor Takes Many Actions Related to Primary Elections When a New Party is
Certified.
When a new Registered Political Party is certified in Utah, the Lt. Governor is required to
change, print, and provide new voter registration forms throughout the state including to the
county clerks, each public assistance agency, armed forces recruitment offices, and each state
driver license division. Software changes are made to the Election Management System to ensure
a new voter or a current voter can register for the new Registered Political Party. The online
voter registration system must be changed to allow a voter to register with the new Registered
Political Party. Absentee ballot request forms and Political Party Affiliation forms are adjusted
and appropriately distributed to the county clerks. These changes are principally relevant to
primary elections for parties who have chosen to have a primary open only to party members.
Party affiliation of a voter is not relevant in a general election in Utah, though voter affiliation
may be designated in the voter registration form.
The Lt. Governor’s Office usually completes these tasks prior to officially certifying the
Registered Political Party to ensure election officials are fully prepared for primary election
voters who may affiliate or switch political parties. The Lt. Governor’s Office has received
complaints in the past from a newly Registered Political Party because the voter registration form
had not been updated prior to the certification and has been accused of certifying a new
Registered Political Party but not providing a way for voters to affiliate with the new Registered
Political Party. 37 Again, these issues are only relevant in primary elections.
The Lt. Governor also contacts the State Tax Commission to ensure they make the
appropriate program and form changes to the “check a buck” program which allows a citizen to

37

Stipulated Facts ¶ 58.

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have taxpayer’s funds go to Registered Political Parties. 38 This step is unrelated to any election
and is more important in the tax-paying season.
Utah’s Election Code Provides Processes for Candidate Access
to the Regular Primary Election Ballot.
Utah Code § 20A-8-401(2) provides that “each new political party seeking registration,
and each unregistered party seeking registration shall ensure that its constitution or bylaws
contain:
(b) a procedure for selecting party officers that allows active participation by
party members; [and]
(c) a procedure for selecting party candidates at the federal, state, and county
levels that allows active participation by party members. 39
To fulfill the requirements of Utah Code § 20A-8-401(2)(c), Registered Political Parties select
general election candidates in a primary election. However, a political party’s unopposed
candidate will go directly on the general election ballot without a primary. 40
A candidate for a Registered Political Party becomes eligible to access the primary
election ballot if the candidate collects signatures of 2% of the Registered Political Party’s
members within the political district. 41 And if a candidate is a member of a Registered Political
Party which is qualified as Qualified Political Party, the candidate may seek the party’s
designation for the primary election ballot through a party convention.

38

Id. ¶ 57.

39

Id. ¶ 42.

40

Id. ¶ 49; Utah Code §§ 20A-9-403(1)(a); 409(2)(b); and 409(2)(c).

41

Utah Code § 20A-9-403(3)(a)(ii).

10

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The parties to this action agree that each of Utah’s five Registered Political Parties 42 have
submitted official paperwork with the Lt. Governor’s Office designating themselves as a
Qualified Political Party. 43
Utah’s Election Code Provides Processes for Candidate Access
to the Regular General Election Ballot.
Candidates who want to appear on a general election ballot may do so as candidates who
win the nomination of a Registered Political Party or as unaffiliated candidates. 44
Unaffiliated candidates receive a place on the ballot for a regular general election by
submitting a nominating petition with a sufficient number of signatures. 45
“All candidates . . . must also file a declaration of candidacy form and, unless seeking a
waiver due to financial hardship, pay a filing fee.” 46
Utah law requires that regular general election ballots include a party designation for
each candidate nominated by a Registered Political Party but requires all other candidates,
regardless of their actual political affiliation, to be listed without a party name and with a
disclaimer that “[t]his candidate is not affiliated with, or does not qualify to be listed on the
ballot as affiliated with, a political party.” 47 Utah law provides no other way for a party
candidate to be listed on the general election ballot with a party label. 48 Section 20A-8-102(2) of
the Utah Election Code provides that “[u]nless an organization of registered voters is a

42

Constitution Party, Democratic Party, Independent American Party, Libertarian Party, and Republican Party.
Opposition at 21-22.
43

Found by the court; suggested by Disputed Facts and Issues ¶ 14.

44

Found by the court; suggested by Disputed Facts and Issues ¶ 2.

45

Stipulated Facts ¶ 16.

46

Id. ¶ 17.

47

Utah Code § 20A-6-301(a).

48

Stipulated Facts ¶ 22; Utah Code § 20A-6-301(1)(e).

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Registered Political Party under this chapter, it may not place the names of candidates
representing that organization upon the primary and regular general election ballots under the
common organization name.” 49
The Utah Election Code contains no provision governing placement of the names of
candidates representing an organization upon a congressional special election ballot under a
common organization name.
Representative Chaffetz’s Resignation Necessitated a Special Election.
The Associated Press reported on April 20, 2017, that Representative Jason Chaffetz of
Utah’s Third Congressional District “wouldn’t seek re-election next year,” and “may not even
finish the two-year term that started four months ago.” 50 According to the same Associated Press
article, Chaffetz said in a text message: “My future plans are not yet finalized but I haven’t ruled
out the possibility of leaving early. In the meantime I still have a job to do and I have no plans to
take my foot off the gas.” 51 On May 18, 2017, Chaffetz’s resignation was announced when he
notified Utah Governor Gary Herbert of his intent to resign effective June 30, 2017. 52 Chaffetz’s
resignation came only a few months into his two-year term and left an 18-month vacancy to fill
in his Third Congressional District seat.
The Lt. Governor Established Procedures for a Congressional Special Election.
On May 19, 2017, after receiving Representative Chaffetz’s resignation letter, Governor
Herbert issued a writ of election and proclamation, which set the special election date as

49

Found by the court; suggested by Disputed Facts and Issues ¶ 4.

50

Stipulated Facts ¶ 9.

51

Id.

52

Id. ¶ 8.

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November 7, 2017. 53 Later that same day, “[p]ursuant to Utah Code 20A-l-502,” the Lt.
Governor issued an order setting forth a Special Election process and calendar for the vacancy of
the Third Congressional District of Utah (the “May 19 Order”). 54 The May 19 Order also
provides that the Special Election will be conducted using the procedures for a regular general
election except as provided in the Special Election Procedures and calendar attached to the
order. 55
The May 19 Order:
•
•
•
•
•

required candidates seeking nomination as a candidate for a Registered Political
Party to file their declaration of candidacy form with the Lt. Governor by 5:00
p.m. on May 26, 2017; 56
set a deadline of June 12, 2017, at noon, for unaffiliated candidates to file a
declaration of candidacy;
required parties nominating by convention to certify their nominee to the Lt.
Governor by noon on June 19, 2017; 57
allows a special primary election to be held, if necessary, on August 15, 2017; 58
and
sets a deadline of August 31, 2017, for the Lt. Governor to certify the names of
the candidates who will appear on the special general election ballot. 59

The Governor set the Special Election date of November 7, 2017, to coincide with the
previously scheduled municipal general election date. The Lt. Governor adopted this date in the
May 19 Order, stating that “[t]he special general election shall be held on the same day as the
municipal general election, November 7, 2017. If a special primary election is needed, it shall be

53
Id. ¶ 10; Governor Herbert Writ of Election, Utah Executive Order/Proclamation No. 2017-3, dated May 19, 2017,
docket no. 19-1, filed July 7, 2017.
54

Stipulated Facts ¶ 11; Lieutenant Governor Order Setting Forth a Special Election Process and Calendar for the
Vacancy of the Third Congressional District of Utah, dated May 19, 2017, docket no. 19-2, filed July 7, 2017.
55

Stipulated Facts ¶ 12.

56

Id. ¶ 18.

57

Id. ¶ 19.

58

Id. ¶ 20.

59

Id. ¶ 21.

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held on the same day as the municipal primary election, August 15, 2017.” 60 To “piggyback” the
Special Election on the municipal primary and general elections, the Lt. Governor determined
the Special Election process needed to begin immediately after Representative Chaffetz
announced his resignation date. 61
The portion of the Lt. Governor’s schedule 62 through certification of the general election
ballot is:

60

Id. ¶ 30.

61

Id. ¶ 31.

62

Exhibit 1 to Verified Complaint, docket no. 2-1, filed June 21, 2017.

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The Lt. Governor’s Schedule
through Certification of Special General Election Ballot
Date
May 19, 2017
(1:00 p.m.)
May 26, 2017
(5:00 p.m.)
May 27, 2017
June 12, 2017
(12:00 p.m.)
June 12, 2017
(12:00 p.m.)
June 16, 2017
June 19, 2017
(12:00 p.m.)
June 19, 2017
(12:00 p.m.)
June 30, 2017
June 30, 2017
June 30, 2017
July 3, 2017
July 17, 2017
July 25, 2017
August 1, 2017
August 8, 2017
August 10, 2017
August 11, 2017
August 15, 2017
August 22, 2017
August 29, 2017
August 31, 2017

Event
Declaration of candidacy and intent to gather signature period begins for
all candidates
Declaration of candidacy and intent to gather signature period ends for
partisan candidates
First day a party may hold a nominating convention
Deadline for partisan signature gathering candidates to submit petition
signatures
Declaration of candidacy and signature submission period ends for
unaffiliated candidates
Lt. Governor certifies qualified signature gathering candidates
Last day for political parties to certify candidates nominated at
convention to the Lt. Governor
Lt. Governor issues a preliminary Special Primary Election ballot
certification and delivers it to county clerks
Vacancy in Office of Representative for Utah’s Third Congressional
District.
Lt. Governor issues the Special Primary Election ballot certification and
delivers it to county clerks
Ballots are sent to military & overseas voters
Last day for candidates to submit Primary Election profile to
vote.utah.gov
Voter registration deadline (via mail)
Mail ballots are sent to voters
In-person early voting begins
Voter registration deadline (via online & in-person)
Absentee ballot request deadline
In-person early voting ends
Special & Municipal Primary Election
County canvass period begins
County canvass period ends
Lt. Governor canvasses Special Primary Election & certifies Special
General Election ballot

Rationale for Lt. Governor’s May 19 Order
The Lt. Governor states that providing a special election process and timeframe that
coincided with the already scheduled municipal elections addressed the state’s interests in

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efficient administrative processes, minimizing voter confusion by combining ballots, increasing
voter turnout and participation, and saving taxpayers approximately $1.6 to $2 million. 63
The Lt. Governor was also concerned about advance mailing of ballots to military
personnel and overseas citizens. Pursuant to Utah Code § 20A-16-403, and 52 U.S.C.
§ 20302(a)(8), the Lt. Governor and county and municipal clerks are required to deliver to
military personnel and overseas citizens the primary election ballot 45 days prior to any federal
election. For the August 15, 2017, special primary election, that day was June 30, 2017, under
Utah law, and July 1, 2017, under federal law. 64
The Lt. Governor determined that he had about six weeks, from May 19 to June 30, 2017,
to provide a declaration of candidacy period, signature collection period, signature review
period, political party conventions period, unaffiliated declaration of candidacy period and
provide sufficient time for election officials to develop, test, and qualify the special primary
ballots prior to June 30, 2017. These steps in a regular general election take place over the course
of four months.
The Special Election involves seven counties and fifty-four municipalities. 65 Because
Representative Chaffetz did not announce his resignation until May 18, 2017, and because the
Lt. Governor set the deadline for party candidates to submit their declarations of candidacy on
May 26, 2017, the UUP had less time to complete the steps necessary for Registered Political
Party status for the upcoming Special Election compared to the 2018 general election. 66

63

Found by the court; suggested by Disputed Facts and Issues ¶ 13; Thomas Dep. at 90:20–91:16 (calculating
projected costs from historical average cost of $2.25 per voter for similar elections multiplied by 355,000 active
registered voters in the Third Congressional District, with about 420,000 active and inactive registered voters).

64

Stipulated Facts ¶ 32.

65

Id. ¶ 33.

66

Id. ¶ 34.

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The UUP Seeks to Organize and Participate in the Special Election.
A month before Representative Chaffetz’s announcement, in April 2017, the UUP was
forming. 67 UUP had attracted some registered Democrat, registered Republican, and unaffiliated
voters. 68 At that time, the next general Congressional election was at least 18 months away. The
period for forming a new political party was open with several months left before the petition
deadline of November 30, 2017. 69
UUP’s timetable changed when its founders learned that Representative Chaffetz’s seat
was opening earlier than expected. On May 25, 2017, UUP held a press conference announcing
their candidate for the Special Election. 70 UUP’s initial filing provided to the Lt. Governor on
May 25, 2017, expressly stated: “The party will hold a convention in June to adopt a constitution
and bylaws and elect officers for the party.” 71 The UUP submitted approximately 2,100
signatures to the Lt. Governor on May 25, 2017. The party submitted an additional
approximately 600 signatures prior to 5:00 p.m. on May 26, 2017. 72 When Mr. Bennett and other
representatives of the UUP submitted their signatures to the Lt. Governor’s office on May 25, an
election official said that the Election Office would do the best they can to quickly review their
documents and petition signatures. 73 The Election Office determined that additional resources
were not necessary to review the UUP petition signatures, believing that it could take the entire

67

Id. ¶¶ 1–2.

68

Verified Complaint, ¶¶ 4–6.

69

Utah Code § 20A-8-103.

70

Stipulated Facts ¶ 53.

71

Id. ¶ 35.

72

Id. ¶ 36.

73

Id. ¶ 37.

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30-day statutory review period. 74 The Election Office opted to complete its review using existing
internal resources. 75 The Election Office did not complete its review and certification of the
UUP’s party petition signatures submitted on May 26, 2017, until June 26, 2017. 76
On May 26, 2017, the UUP sent its proposed bylaws and constitution to the Lt.
Governor’s office and chose to be designated as a Qualified Political Party. 77
On June 17, 2017, the UUP held an organizing convention at which the party adopted its
constitution and bylaws, elected officers, and nominated Mr. Bennett in accordance with its
bylaws as the UUP’s unopposed candidate in the Special Election for the Third Congressional
District seat. 78 No other person has attempted to file as a UUP candidate for the Third
Congressional District seat. Prior to 12:00 p.m. on June 19, 2017, the UUP submitted a
certification to the Lt. Governor’s office certifying Jim Bennett as the UUP’s nominee in the
Special Election for Representative Chaffetz’s seat. UUP also stated that “[c]ertification is
requested promptly and certification for candidates to file for the special election is requested
pending certification of the party.” 79
On June 26, 2017, after the expiration of the full 30-day period for review of a new
party’s petition, 80 the Lt. Governor certified that the UUP had submitted enough signatures to
become a Registered Political Party and that the party’s name and emblem are distinguishable

74

Thomas Dep. at 44-45, 48.

75

Id.

76

Stipulated Facts ¶ 45.

77

Id. ¶ 38.

78

Id. ¶¶ 3, 43.

79

Id. ¶ 41; Utah Code § 20A-8-103(3)(i).

80

Utah Code § 20A-8-103(6).

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from other parties. 81 After that certification, UUP was then authorized to organize the
prospective Registered Political Party.
On June 27, 2017, the Lt. Governor determined that the UUP need not hold another
organizing convention in order to become a Registered Political Party. 82 On June 28, 2017, the
UUP submitted to the Lt. Governor the names of party officers elected at the party’s organizing
convention and provided additional documentation requested by the Lt. Governor to complete
the process of becoming a Registered Political Party. 83
On July 13, 2017, the Lt. Governor certified the UUP as a Registered Political Party 84
and requested that the UUP provide him with the “Party’s procedures for remote voting or
designating an alternate delegate if a delegate is not present at a political party’s convention” in
order to assist him in determining whether the UUP has met the statutory requirements to be a
Qualified Political Party (“QPP”) under Utah Law. 85
On Monday, July 17, the governing body of the UUP met and adopted a policy on remote
voting that permits party members to vote remotely at satellite locations linked to the party’s
convention by video conferencing technology. On the same day, the chair of the UUP
communicated the remote voting policy to the Lt. Governor’s office by electronic mail. 86
On Thursday, July 27, the Lt. Governor’s office informed the chair of the UUP by
telephone that the Lt. Governor’s office had determined that the UUP’s remote-voting policy

81

Stipulated Facts ¶ 45.

82

Id. ¶ 46.

83

Id. ¶ 47.

84

Supplemental Fact ¶1, Defendant’s Responses to Plaintiffs’ Additional Facts and Supplemental Facts, docket no.
35, filed July 13, 2017.
85

Supplemental Stipulated Facts ¶ 1, docket no. 45, filed August 1, 2017; Stipulated Facts ¶ 2.

86

Supplemental Stipulated Facts ¶¶ 2-3.

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does not meet the statutory requirements for QPP status because it does not permit a delegate to
participate in convention unless the delegate can be physically present at a specified location. 87
On Monday, July 31, the UUP submitted to the Lt. Governor’s office a proposed
procedure for designating an alternate delegate in the event that a delegate is not able to attend
the party’s convention in person. The Lt. Governor and his staff reviewed the proposed
procedure and determined that, if adopted, the proposed procedure would satisfy the requirement
to be a QPP found in Utah Code § 20A-9-101(12)(a). 88
Later on July 31, the governing body of the UUP then met and adopted the procedure that
had been reviewed by the Lt. Governor’s office. On August 1, the chair of the UUP informed the
Lt. Governor’s office by electronic mail that it had adopted the procedure. On August 1, 2017,
the Lt. Governor made a final determination that the UUP has met the statutory requirements for
QPP status. 89
Actions Taken Furthering Jim Bennett’s Candidacy
Jim Bennett, a founding member of the UUP, is the UUP candidate for United States
Representative in the Third Congressional District. 90 On the afternoon of May 26, 2017, Mr.
Bennett went to the Lt. Governor’s office to submit his declaration of candidacy. 91 Although the
UUP had submitted its party petition signatures to the Lt. Governor’s office, along with the
party’s proposed constitution and bylaws, prior to the 5:00 p.m. deadline, the Lt. Governor’s

87

Id. ¶ 4.

88

Id. ¶¶ 5-6.

89

Id. ¶¶ 7- 9.

90

Id. ¶ 3.

91

Id. ¶ 39.

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office did not accept Mr. Bennett’s declaration of candidacy for the UUP’s nomination because
the UUP was not yet a Registered Political Party in the State of Utah. 92
Under the May 19 Order, the last day to file as an unaffiliated candidate was June 12,
2017, at noon. Mr. Bennett did not file as an unaffiliated candidate. The last day to file as a
write-in candidate for the Special Election is September 8, 2017.
Summary of UUP and Bennett Actions
In this table, the actions UUP took to become a Registered Political Party and Qualified
Political Party (shown in red) are overlaid with the Lt. Governor’s Special Election schedule,
through certification of the general election ballot:
Date
May 19, 2017
(1:00 p.m.)
May 25, 2017
May 26, 2017
May 26, 2017
May 26, 2017
May 26, 2017
(5:00 p.m.)
May 27, 2017
June 12, 2017
(12:00 p.m.)
June 12, 2017
(12:00 p.m.)
June 16, 2017
May 26, 2017
June 17, 2017
June 19, 2017,
before 12:00 p.m.
June 19, 2017
(12:00 p.m.)
92

Event
Declaration of candidacy and intent to gather signature period
begins for all candidates
UUP’s initial petition with 2100 signatures provided to the Lt.
Governor
UUP submits an additional approximately 600 signatures
UUP submits its proposed bylaws and constitution and chose to be
designated as a qualified political party
Jim Bennett submits his declaration of candidacy to the Lt.
Governor
Declaration of candidacy and intent to gather signature period ends
for partisan candidates
First day a party may hold a nominating convention
Deadline for partisan signature gathering candidates to submit
petition signatures for existing and prospective new parties.
Declaration of candidacy and signature submission period ends for
unaffiliated candidates
Lt. Governor certifies qualified signature gathering candidates
UUP submits its proposed bylaws and constitution to the Lt.
Governor and chose to be designated as a qualified political party
UUP holds its convention and nominates Jim Bennett as its
candidate
UUP certified Jim Bennett as the UUP’s nominee in the
congressional special election to the Lt. Governor’s office.
Last day for political parties to certify candidates nominated at
convention to the Lt. Governor

Id. ¶ 44.

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June 19, 2017
(12:00 p.m.)
June 26, 2017

June 27, 2017
June 28, 2017

June 30, 2017
June 30, 2017
June 30, 2017
July 3, 2017
July 13, 2017

July 17, 2017
July 25, 2017
August 1, 2017
August 1, 2017
August 8, 2017
August 10, 2017
August 11, 2017
August 15, 2017
August 22, 2017
August 29, 2017
August 31, 2017

Lt. Governor issues a preliminary Special Primary Election ballot
certification and delivers it to county clerks
Lt. Governor certified that the UUP had submitted enough
signatures to become a Registered Political Party and that the party’s
name and emblem are distinguishable from other parties
Lt. Governor determined that the UUP need not hold another
organizing convention to become a Registered Political Party
UUP submitted to the Lt. Governor the names of party officers
elected at the party’s organizing convention and provided additional
documentation requested by the Lt. Governor to complete the
process of becoming a Registered Political Party.
Vacancy in Office of Representative for Utah’s Third Congressional
District.
Lt. Governor issues the Special Primary Election ballot certification
and delivers it to county clerks
Ballots are sent to military & overseas voters
Last day for candidates to submit Primary Election profile to
vote.utah.gov
Lt. Governor certified the United Utah Party as a Registered
Political Party requested UUP provide additional information
concerning whether the it has met the statutory requirements to be a
Qualified Political Party
Voter registration deadline (via mail)
Mail ballots are sent to voters
Lt. Governor determines UUP has QPP status.
In-person early voting begi90ns
Voter registration deadline (via online & in-person)
Absentee ballot request deadline
In-person early voting ends
Special & Municipal Primary Election
County canvass period begins
County canvass period ends
Lt. Governor canvasses Special Primary Election & certifies Special
General Election ballot

Lt. Governor Procedures – Special Primary Election to Special General Election
The Lt. Governor issued a preliminary certification of the primary ballots on June 19 to
the county clerks in order to allow time to prepare, print, and distribute the primary ballots by
June 30, 2017. 93 On June 30, 2017, the Lt. Governor issued the final primary ballot certification
93

Id. ¶ 54.

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and the county clerks delivered primary ballots to voters that same day. 94 After the special
primary election results are canvassed, the Lt. Governor will certify the candidates for the special
general election ballots on or before August 31. On June 20, 2017, counsel for the Lt. Governor
stated that Utah will not include the nominee of the UUP on the special general election ballot
even if the party becomes a Registered Political Party before that date. 95 Pursuant to Utah Code
§ 20A-16-403, and 52 U.S. Code § 20302(a)(8), the Lt. Governor, county and municipal clerks
are required to deliver to military personnel and overseas citizens the special general election
ballot, 45 days prior to any federal election. For the November 7, 2017 election, that day is
September 22, 2017, under Utah law, and September 23, 2017, under federal law. 96
Only the Lt. Governor’s Procedures Exclude New Parties from the Special Election.
Utah’s party-registration statues and the Lt. Governor’s May 19 Order made it impossible
for a new political party to become registered prior to the May 26, 2017, candidate-filing
deadline. 97 Nothing in Utah law prohibited the Lt. Governor from including in his May 19 Order
a way for new political parties to participate in this Special Election. 98 As a practical matter,
Utah’s party registration statutes, the May 19 Order, and the Lt. Governor’s timeframes for
certifying a Registered Political Party in the context of a regular election cycle made it
impossible for a new political party to have its nominee appear on the ballot in the Special
Election unless the party had submitted its registration petition several months before
Representative Chaffetz announced his intention to resign. 99

94

Id. ¶ 60.

95

Id. ¶ 61; Letter from T. Roberts to C. Hayman, dated June 20, 2017, docket no. 19-4, filed July 7, 2017.

96

Stipulated Facts ¶ 62.

97

Found by the court; suggested by Disputed Facts and Issues ¶ 8.

98

Found by the court; suggested by Disputed Facts and Issues ¶ 11.

99

Found by the court; suggested by Disputed Facts and Issues ¶ 12.

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The Election Office Review of UUP’s Petition Was Unnecessarily Delayed.
The single longest delay in UUP registration was the Election Office review of the UUP
petitions, from May 26 to June 26, 2017. This delay was entirely within the control of the
Election Office. That period will be examined in detail.
When the Election Office reviews petition signatures for political parties or candidate
petitions, it begins by verifying that the person who circulated the petition meets the statutory
requirements necessary to be a circulator—i.e., that the circulator is a Utah resident over 18 years
of age. 100 The Election Office then reviews the individual petition signatures and the
accompanying address, birthdate, and signature to ensure that information matches the
information the State has on file. 101 For candidate petitions, the Election Office also reviews the
petition signatures to ensure that the voter did not sign another petition for the same candidate. 102
Utah’s voter registration database (“VISTA”) usually contains all of the information necessary
for the Election Office to review petition signatures. 103 If a signature has been collected by a
careful circulator, and the name, address, and birth date included on the petition is the same as
the information contained in VISTA, it takes approximately 60 to 90 seconds for the Election
Office to review a signature. 104
During this Special Election, two party candidates submitted candidate petition
signatures: Tanner Ainge and John Curtis. 105 Mr. Ainge submitted his candidate petition

100

Thomas Dep. at 21-22, 25.

101

Id. at 20–22.

102

Id. at 21.

103

Id. at 24–26.

104

Id. at 32–34.

105

Id. at 34.

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signatures on Tuesday, June 6, 2017, or Wednesday, June 7, 2017. 106 The Election Office
reviewed those petitions and certified 7,000 signatures within approximately one week. 107 Mr.
Curtis submitted his candidate petition signatures on June 12, 2017. The Election Office
reviewed those petitions and certified 7,000 within 3 to 4 days. 108
In preparation for reviewing the candidate petitions of Mr. Ainge and Mr. Curtis, the
Election Office hired temporary employees and procured rental space and computer screens for
those workers. 109
The Lt. Governor said he was aware on May 22, 2017, that the UUP intended to become
a political party and run a candidate in the Special Election. 110 The Lt. Governor’s Office has no
information that the signatures the UUP submitted were in bad form or took an unusually long
amount of time to verify. 111 The Lt. Governor has identified no defects in the UUP’s process of
organizing the party and, barring any technical computer issues with the state system and the
public-based voter registration websites, intended to and did issue a certification to the UUP on
July 13, 2017, confirming that it is a Registered Political Party in the State of Utah. 112 From start
to finish, the process for the Lt. Governor to review the UUP’s party petitions and organizational
documents spanned from May 25, 2017, to July 13, 2017—i.e., seven weeks. 113 The UUP’s
registration application could have been completed in less than seven weeks if the Lt. Governor

106

Id. at 37.

107

Id.

108

Id.

109

Id. at 35–36.

110

Id. at 53–55, 104.

111

Id. at 52.

112

Id. at 63–64.

113

Id. at 70–71.

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had taken different steps, such as using the temporary workers the Lt. Governor’s office had
hired to verify the UUP’s 2,000 signatures. 114 The review of 2,000 signatures could have been
completed in less than 30% of the time required to review 7,000 signatures each for candidates
Mr. Ainge (one week) and Mr. Curtis (3-4 days). 30% of the longer one-week period is less than
two days.
Elimination of Election Office Delays Would Have Allowed Full Registration
of the UUP Before the Special Primary Election.
The longest single period in UUP registration as a party was the 30-day review of
petitions in the Lt. Governor’s Office from May 26 to June 26, 2017. The second longest period
was the document review from June 28 to July 13, 2017. Another long period was the time
required for the UUP to show compliance for QPP status, from July 13 to August 1, 2017.
Reducing the first period from 30 days to four; the second period from 15 days to two; and the
third period from 15 days to five business days (due to UUP’s inadequate submissions) shows
the UUP registration process could have been completed as follows, enabling UUP to be
recognized before the UUP convention and certification of the primary election ballot:
Date
May 19, 2017
(1:00 p.m.)
May 25, 2017
May 26, 2017
May 26, 2017
May 26, 2017
May 26, 2017
(5:00 p.m.)
May 27, 2017

114

Event
Declaration of candidacy and intent to gather signature
period begins for all candidates
UUP’s initial petition with 2100 signatures provided to the
Lt. Governor
UUP submits an additional approximately 600 signatures
UUP submits its proposed bylaws and constitution and
chose to be designated as a qualified political party
Jim Bennett submits his declaration of candidacy to the Lt.
Governor
Declaration of candidacy and intent to gather signature
period ends for partisan candidates
First day a party may hold a nominating convention

Id. at 71–73.

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Date
June 12, 2017
(12:00 p.m.)
June 12, 2017
(12:00 p.m.)
June 16, 2017
May 26, 2017

June 2, 2017

June 5, 2017

June 6, 2017

June 8, 2017

June 15, 2017
June 17, 2017
June 19, 2017,
before 12:00 p.m.
June 19, 2017
(12:00 p.m.)
June 19, 2017
(12:00 p.m.)
June 30, 2017
June 30, 2017

Event
Deadline for partisan signature gathering candidates to
submit petition signatures for existing and prospective new
parties.
Declaration of candidacy and signature submission period
ends for unaffiliated candidates
Lt. Governor certifies qualified signature gathering
candidates
UUP submits its proposed bylaws and constitution to the Lt.
Governor and chose to be designated as a qualified political
party
Lt. Governor could have certified that the UUP had
submitted enough signatures to become a Registered
Political Party and that the party’s name and emblem are
distinguishable from other parties
Lt. Governor could have determined that the UUP need not
hold another organizing convention to become a Registered
Political Party
UUP could have submitted to the Lt. Governor the names of
party officers elected at the party’s organizing convention
and could have provided additional documentation requested
by the Lt. Governor to complete the process of becoming a
Registered Political Party.
Lt. Governor could have certified the United Utah Party as a
Registered Political Party and could have requested UUP
provide additional information concerning whether the it met
the statutory requirements to be a Qualified Political Party
Lt. Governor determines UUP has QPP status.
UUP holds its nominating convention and nominates Jim
Bennett as its candidate
UUP certified Jim Bennett as the UUP’s nominee in the
congressional special election to the Lt. Governor’s office.
Last day for political parties to certify candidates nominated
at convention to the Lt. Governor
Lt. Governor issues a preliminary Special Primary Election
ballot certification and delivers it to county clerks
Vacancy in Office of Representative for Utah’s Third
Congressional District.
Lt. Governor issues the Special Primary Election ballot
certification and delivers it to county clerks

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The Lt. Governor Did Not Consider Participation of New Parties in the Special Election.
Every deadline in the May 19 Order would not exist but for the May 19 Order. 115
Although the May 19 Order compresses the statutory election calendar as compared to the
regular election calendar, the May 19 Order makes no accommodations for or adjustments to the
political party statutory process for becoming a Registered Political Party. 116 At the time the Lt.
Governor issued the May 19 Order, “there just wasn’t any real discussion related to any potential
because I—we just weren’t—it wasn’t an issue that had come up, other than in talking about
scenarios that—and timeliness and other issues.” 117 The Lt. Governor’s Office admits it never
made a determination that the Lt. Governor could not make adjustments in the May 19 Order to
the political party statutory process for becoming a Registered Political Party. 118
The State Faces No Significant Burdens in Including the UUP and Its Candidate
in the Special General Election.
Adding the UUP as an additional party and its candidate to the already scheduled special
general election likely would not result in any cost increase to the State, and the Lt. Governor’s
Office is not aware of any voter confusion that has arisen from any of the other congressional
special elections around the country this year. 119 No one other than Mr. Bennett attempted to file
a declaration of candidacy seeking to be on the ballot in the Special Election for a political party
that is not registered. 120 The Lt. Governor’s Office has no reason to believe that anyone other
than Mr. Bennett wanted to run for the UUP nomination for the Third Congressional District. 121

115

Id. at 80–81.

116

Id. at 74, 82–84.

117

Id. at 86–87.

118

Id. at 84.

119

Id. at 91–94.

120

Id.

121

Id. at 103–04.

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The Lt. Governor’s Office has not received any indication from the Green Party that it intends to
try to run a candidate in this Special Election. 122
PROCEDURAL STANDARD
To be granted a motion for preliminary injunction, the movant must demonstrate that four
factors weigh in favor of the injunction:
(1)
(2)
(3)
(4)

the likelihood of success on the merits;
the likelihood that the movant will suffer irreparable harm in the absence
of preliminary relief;
the balance of equities 123 tips in the movant’s favor; and
the injunction is in the public interest. 124

Because a preliminary injunction is an extraordinary remedy, the “right to relief must be clear
and unequivocal.” 125
Additionally, three types of preliminary injunctions are disfavored: (1) preliminary
injunctions altering the status quo, (2) mandatory preliminary injunctions (those requiring the
nonmovant to take action), and (3) preliminary injunctions granting the moving party all the
relief it could recover at the conclusion of a full trial on the merits. 126 Plaintiffs seek a disfavored
mandatory preliminary injunction because it would (1) alter the status quo for the Special
Election Procedures, (2) require the Lt. Governor to include the UUP in the Special Election, 127

122

Id. at 100–101.

123

The Tenth Circuit has sometimes framed this factor as the “balance of harms” rather than the “balance of
equities.” See, e.g. Westar Energy, Inc. v. Lake, 552 F.3d 1215, 1224 (10th Cir. 2009) (setting forth one of the
elements of preliminary injunction as “the threatened injury to the moving party outweighs the harm to the opposing
party resulting from the injunction”). Here, as must generally be the case, what is least harmful on balance is also
most equitable on balance.
124

RoDa Drilling Co. v. Siegal, 552 F.3d 1203, 1208 (10th Cir. 2009).

125

Heideman v. South Salt Lake City, 348 F.3d 1182, 1188 (10th Cir. 2003).

126
O Centro Espirita Beneficiente Uniao Do Vegetal v. Ashcroft, 389 F.3d 973, 975 (10th Cir. 2004) (en banc), aff’d
on other grounds, 546 U.S. 418 (2006).
127

Motion at 2, docket no. 5. Plaintiffs frame their request for relief as “enjoin[ing] the [Lt. Governor] from refusing
to include the United Utah Party’s nominee, Jim Bennett, on the ballot in the special election.” Id. To stop a party
from refusing to do something is the same as requiring the party to take action.

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and (3) afford Plaintiffs all the relief sought. 128 This is typical of an election case, in which a
public official has taken action or a statute defines a procedure, which can only be corrected by
affirmative relief granted in a short time frame. A disfavored preliminary injunction may only be
granted when supported by strong showings of the likelihood of success on the merits and the
favorable balance of harms. 129
As the parties have acknowledged, 130 the Motion hinges on the outcome of the first
element — likelihood of success on the merits. If Plaintiffs (1) are likely to succeed on their
claim that the UUP’s exclusion from the Special Election violates Plaintiffs’ constitutional
rights, it follows that (2) Plaintiffs will suffer irreparable harm in the absence of preliminary
relief with respect to the upcoming Special Election, (3) the balance of equities tips in Plaintiffs’
favor, and (4) a preliminary injunction is in the public interest. 131 Conversely, if Plaintiffs were
not likely to succeed on their constitutional claims, the other elements would weigh just as firmly
against preliminary relief.
DISCUSSION
A Flexible Legal Standard Applies to Constitutional Challenges to Election Laws.
Constitutional analysis begins by determining the level of judicial scrutiny that applies to
the government restriction at issue. The Supreme Court explained in Burdick v. Takushi that
constitutional challenges to state election laws are scrutinized under a uniquely flexible standard
justified by the nature of election laws. 132 Without question, “voting is of the most fundamental

128

Verified Complaint at 12–13 (Prayer for Relief).

129

Ashcroft, 389 F.3d at 976.

130

Transcript at 95:17–96:10.

131

RoDa Drilling, 552 F.3d at 1208.

132

504 U.S. 428, 434 (1992) (upholding Hawaii election law’s ban on write-in voting).

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significance under our constitutional structure.” 133 Even though voting is a fundamental right,
the right to vote in any manner and associate for any political purpose is not absolute. 134 The
individual states are responsible to establish procedures and regulations for holding elections. 135
Elections must be structured and regulated to bring order and fairness to the democratic
process. 136 “Each provision of [a state’s comprehensive election code], 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 individual’s right to vote and his
right to associate with others for political ends.” 137 To subject every voting regulation to strict
scrutiny would paralyze states from operating elections equitably and efficiently. 138
“Constitutional challenges to specific provisions of a State’s election laws therefore cannot be
resolved by any ‘litmus-paper test’ that will separate valid from invalid.” 139
The Supreme Court in Anderson v. Celebrezze implemented a two-step analysis for
constitutional challenges to state election laws. A court “must first consider the character and
magnitude of the asserted injury to the rights protected by the First and Fourteenth Amendments
that [plaintiff] seeks to vindicate.” 140 The court next identifies and evaluates “the precise
interests put forward by the State as justifications for the burden imposed by its rule.” 141 In this

133

Id. at 433 (quoting Ill. Bd. of Elections v. Socialist Workers Party, 440 U.S. 173, 184 (1979)).

134

Id. (citing Munro v. Socialist Workers Party, 479 U.S. 189, 193 (1986)).

135

Id. (citing U.S. Constitution, Art. I, § 4, cl. 1.).

136

Id.

137

Anderson v. Celebrezze, 460 U.S. 780, 788 (1983) (rejecting Ohio’s early deadline for declaration of candidacy
for President of the United States).
138

Burdick, 504 U.S. at 433.

139

Anderson, 460 U.S. at 789.

140

Id.

141

Id.

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second part of the analysis, the government’s interests are not only weighed against the
plaintiff’s rights; the court “also must consider the extent to which those interests make it
necessary to burden the plaintiff’s rights.” 142 In other words, the relative balance of the rights
and burdens is examined, and there must be a connection between the government’s interests and
the particular restriction imposed on the plaintiff.
The Special Election Procedures Severely Burden Plaintiffs’ Constitutional Rights.
The Anderson/Burdick test starts by assessing the “character and magnitude of the
asserted injury.” 143 The character of the injury asserted in this case is a violation of the First and
Fourteenth Amendment rights to affiliate with political parties in the Special Election. 144 The
magnitude of the asserted injury is complete—that is, the Special Election Procedures not only
limit but completely bar the UUP’s participation in the Special Election as a new party.
The Character of the Asserted Injury: The Special Election Procedures Violate Plaintiffs’
First and Fourteenth Amendments Rights.
The relief sought by the Motion concerns the UUP’s access to the ballot, which impacts
not only the rights of the UUP and Mr. Bennett, its candidate, but also the rights of voters in the
Third Congressional District of Utah, including the other named Plaintiffs. The Supreme Court
has held that “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.” 145 Courts recognize that restrictions on ballot access interfere specifically with
candidates’ and political parties’ “right to associate for political purposes” and with “the rights of

142

Id.

143

Id.

144

Verified Complaint ¶¶ 1 and 61.

145

Bullock v. Carter, 405 U.S. 134, 143 (1972) (rejecting the Texas filing fee for primary elections).

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qualified voters to cast their votes for the candidates of their choice.” 146 For several decades, the
Supreme Court “has recognized the constitutional right of citizens to create and develop new
political parties.” 147 “The right derives from the First and Fourteenth Amendments and advances
the constitutional interest of like-minded voters to gather in pursuit of common political ends,
thus enlarging the opportunities of all voters to express their own political preferences.” 148 The
Utah Elections Code recognizes the values of candidacy and voter expression, instructing that
one part of the code shall “be construed liberally so as to ensure full opportunity for persons to
become candidates and for voters to express their choice.” 149
Plaintiffs correctly assert that the Lt. Governor’s Special Election Procedures did not
provide for new party participation in the Special Election. 150 Despite the UUP’s diligent efforts,
it has not been able to declare its chosen candidate, Mr. Bennett, for the Special Election. 151
Under the Lt. Governor’s plan, Mr. Bennett’s options for potential candidacy are limited to
running as an independent candidate or as a write-in candidate, neither of which accurately
reflects his affiliation with the UUP. 152 While the timeline for established parties to hold
primaries and participate in the special general election was outlined in the May 19 Order, the Lt.
Governor provided no path to the ballot for new political parties. 153

146

Williams v. Rhodes, 393 U.S. 23, 30 (1968).

147

Norman v. Reed, 502 U.S. 279, 288 (1992).

148

Id.

149

Utah Code § 20A-9-401.

150

Motion at 8–9.

151

Stipulated Facts ¶ 44.

152

Letter from T. Roberts to C. Hayman, dated June 20, 2017; Stipulated Facts, Exhibit 4, docket no. 19-4.

153

May 19 Order, Exhibit 2 toStipulated Facts, , docket no. 19-2.

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In Anderson, the Supreme Court clearly spoke against unequal treatment of political
parties. “A burden that falls unequally on new or small political parties or on independent
candidates impinges, by its very nature, on associational choices protected by the First
Amendment.” 154 The Anderson court held that equal treatment of candidates in an election is not
necessarily achieved by imposing identical procedures on candidates without accounting for
differences in their candidacies. “Sometimes the grossest discrimination can lie in treating things
that are different as though they were exactly alike.” 155 This case presents such a situation.
The UUP, as a new party, unquestionably differs from the established Republican and
Democratic Parties. The Republican Party has been particularly dominant in Utah’s Third
Congressional District elections. The Lt. Governor, Governor Herbert, and resigned
Representative Chaffetz are all Republicans. In a state that elected Republican candidates for
federal office across the board in the 2016 elections, the Third Congressional District stands out
for electing Representative Chaffetz at 73.5 percent, a higher percentage than any other race in
the state. 156 These facts suggest careful examination of the one-party control of this special
election process, from resignation to the Governor’s writ of election and proclamation, through
the Lt. Governor’s Special Election Procedures.
The UUP serves an important role as an alternative to the established political parties. As
the Supreme Court has observed, “political figures outside the two major parties have been
fertile sources of new ideas and new programs; many of their challenges to the status quo have in

154

Anderson, 460 U.S. at 793 (1983).

155
Id. at 780 (quoting Jenness v. Fortson, 403 U.S. 431, 442 (1971)). While Anderson did not reach Equal
Protection arguments, the Supreme Court noted that other courts had done so, in favor of Anderson. Id. at 780, n. 7.
156

Certification of the State Board of Canvassers, dated November 28, 2016, available at:
https://elections.utah.gov/Media/Default/2016%20Election/2016%20General%20Election%20%20Statewide%20Canvass%203.pdf (last visited August 1, 2017).

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time made their way into the political mainstream.” 157 Indeed, the Utah Republican Party has
been involved in dissension over election procedures, even to the point of internecine litigation
in this court. 158 Such circumstances lay fertile ground for newly emerging parties to participate
in the Utah’s political process.
The Lt. Governor contends that Mr. Bennett could be an effective alternative as an
independent or write-in candidate. 159 These options fall short of protecting Plaintiffs’ right to
association in the Special Election. 160 It “is beyond debate that freedom to engage in association
for the advancement of beliefs and ideas is an inseparable aspect of the ‘liberty’ assured by the
Due Process Clause of the Fourteenth Amendment, which embraces freedom of speech.” 161 In
Bullock v. Carter, the Supreme Court rejected the argument that instead of paying a burdensome
filing fee to participate in a primary election for local office in Texas, a prospective Democratic
Party candidate could forego the primary and apply for the general election ballot via voter
petition. 162 The Supreme Court held that “we can hardly accept as reasonable an alternative that
requires candidates and voters to abandon their party affiliations in order to avoid the burdens of
[a voting regulation].” 163 This is no less true for a new political party. Plaintiffs have a
protectable constitutional right to associate as a party under the UUP banner.

157

Anderson, 460 U.S. at 794.

158

Utah Republican Party v. Herbert et al, 2:16-cv-00038-DN; Utah Republican Party v. Herbert et al, 2:14-cv00876-DN.
159

Opposition at vii.

160
McLain v. Meier, 637 F.2d 1159, 1165 (8th Cir. 1980) (A “candidate who wishes to be a party candidate should
not be compelled to adopt independent status in order to participate in the electoral process.”).
161

Anderson, 460 U.S. at 787 (quoting NAACP v. Alabama, 357 U.S. 449, 460 (1958)).

162

405 U.S. at 146–47 (rejecting Texas filing fee for primary elections).

163

Id.

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The Magnitude of the Asserted Injury: The Special Election Procedures Severely Burden
Plaintiffs’ Rights.
The Special Election Procedures create a complete bar to new party participation in the
Special Election. The May 19 Order compresses the statutory election calendar as compared to
the regular election calendar, but makes no allowance for a newly emerging political party. 164 At
the time the Lt. Governor issued the May 19 Order, “there just wasn’t any real discussion related
to any potential [new political party] because . . . it wasn’t an issue that had come up, other than
in talking about scenarios that—and timeliness and other issues.” 165 The Lt. Governor’s Office
admits it never determined that the Lt. Governor couldn’t make adjustments in the May 19 Order
to the process for formation of a new party in the context of a congressional special election. 166
Nevertheless, the Election Office declined Mr. Bennett’s declaration of candidacy for the UUP’s
nomination on the May 26, 2017 deadline because the UUP was not yet a Registered Political
Party. 167
Excluding the UUP from the Special Election altogether imposes a severe burden on the
right to associate in a political party described above. The Supreme Court explained the
importance of new party ballot access in Williams v. Rhodes:
The right to form a party for the advancement of political goals means little if a
party can be kept off the election ballot and thus denied an equal opportunity to
win votes. So also, the right to vote is heavily burdened if that vote may be cast
only for one of two parties at a time when other parties are clamoring for a place
on the ballot. 168

164

Thomas Dep. at 74, 82–84.

165

Id. at 86–87.

166

Id. at 84.

167

Stipulated Facts, ¶¶ 39–40.

168

Williams v. Rhodes, 393 U.S. 23, 31 (1968).

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The rights of each of the Plaintiffs is heavily burdened by the Special Election Procedures. The
UUP is excluded from the Special Election. Mr. Bennett is forced to choose between running
without the affiliation of his party and not running at all. And the voters are deprived of an
option in the election that best reflects their political ideals.
In summary, under the first step of the Anderson/Burdick analysis, the character and
magnitude of the infringement on Plaintiffs’ rights is significant.
The Interests Asserted by the Lt. Governor Do Not Justify or Necessitate a Complete Bar
to New Political Party Participation in the Special Election.
The second step in the Anderson/Burdick analysis is to evaluate the State’s interests in
implementing the Special Election Procedures. 169 The court must consider whether the State’s
interests justify imposing such a burden on Plaintiffs’ rights, as well as “the extent to which
those interests make it necessary to burden the plaintiff’s rights.” 170 In other words, the State’s
interests must be proportionate to the burden the election procedures impose on Plaintiffs, and
the specific State interests must necessitate imposing the particular burden caused by the election
procedures.
The State Interests Identified by the Lt. Governor Are Insufficient.
The Special Election Procedures reflect an effort by the Lt. Governor to follow the
typical process for elections provided in the Election Code as closely as possible assuming the
typical practice of forming a political party before the party declares a candidate. The Lt.
Governor also seeks to combine the Special Election with the existing municipal elections
scheduled for November 7, 2017, throughout the Third Congressional District. The Lt. Governor
contends that this design serves a number of State interests:

169

Anderson, 460 U.S. at 789.

170

Id.

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•

alleviating administrative burdens on the State and counties;

•

saving the State the added election costs of a separate election;

•

reducing the time of the vacancy in Congress;

•

minimizing voter confusion, deception, and even frustration of the democratic
process at the general election;

•

increasing voter participation;

•

promoting the stability of the political system by avoiding splintered parties and
unrestrained factionalism; and

•

preventing ballot overload with frivolous candidacies by requiring a preliminary
showing of a significant modicum of support. 171

These State interests are not sufficient justifications for the severe burden imposed by the
Special Election Procedures. The State presumably could not forecast the need for the Special
Election. The Lt. Governor was expected to fill Representative Chaffetz’s vacancy in compliance
with the Election Code, and to do so as quickly, efficiently, and cost-effectively as possible.
None of these goals, however, permit the Lt. Governor to prevent a class of voters from
association, assembly, and voting for a newly formed political party in the Special Election.
Administrative Burdens
Reducing administrative burdens is a worthwhile objective, but not a sufficient state
interest to outweigh Plaintiffs’ First and Fourteenth Amendment rights. In Idaho Republican
Party v. Ysursa, the defendant argued that changes to election procedures would create added
administrative burdens and costs. 172 The district court agreed but nonetheless concluded that
“there is no support for an argument that avoiding these burdens and costs are a compelling state

171

Opposition at 15–16.

172

765 F.Supp.2d 1266, 1276 (D. Idaho 2011).

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interest.” 173 The same holds true here. Although adding another political party to the ballot
creates more work for the State, that does not justify excluding UUP from the Special Election.
Costs
The Lt. Governor argues that he was compelled to use the existing election dates of
August 15 and November 7 because additional costs would have been incurred if those dates
were not used. However, the cost of using different election dates does not outweigh the burden
of complete exclusion of a newly formed political party.
Courts have repeatedly rejected the argument that cost is a sufficient state interest in
election cases. 174 The Third Circuit, relying on Supreme Court precedent, explained that
“defraying the costs of elections is not “of compelling importance.” 175 Similarly, Justice Stevens,
in a concurring decision in Illinois Board of Elections, recognized a “valid interest” in limiting
access to the ballot where placing additional names on a ballot “adds to the cost of conducting
elections,” but found the interest insufficient to outweigh the burden of Illinois’s high signature
requirements for new parties. 176 Election costs do not justify the burden of an absolute bar to
ballot access for candidate Jim Bennett of the new UUP. However, incurring the expense of a
separate election is not the Lt. Governor’s only option, as will be discussed later.
Time
The Lt. Governor prioritized joining the Special Election with municipal elections
already scheduled for August 15 and November 7, 2017. The condensed schedule in the May 19
Order—which did not allow time for the UUP to organize, register, qualify, and participate in the

173

Id. at 1276.

174

Belitskus v. Pizzingrilli, 343 F.3d 632, 646–47 (3d Cir. 2003).

175

Id. (citing Bullock at 148).

176

Ill. Bd. of Elections, 440 U.S. at 191.

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Special Election before the candidate declaration deadline—was caused by the short time
between Representative Chaffetz’s resignation and the November 2017 municipal general
elections.
The UUP could not reasonably predict that Chaffetz would resign and cannot be expected
to do so. 177 The Supreme Court has declined to recognize a right to “instantaneous” access to the
ballot or even a late decision by a candidate to seek inclusion on a ballot. 178 But that
circumstance is not present here. Rather, the UUP had no opportunity to participate in the
Special Election because it was not already a Registered or Qualified Political Party when the
Special Election was announced.
The Supreme Court recognizes that election schemes that require unnecessarily
early action by candidates place a disproportionate burden on newly emerging
parties and candidates: Since the principal policies of the major parties change to
some extent from year to year, and since the identity of the likely major party
nominees may not be known until shortly before the election, this disaffected
‘group’ will rarely if ever be a cohesive or identifiable group until a few months
before the election. 179
Impossibly early deadlines cannot be a valid state interest.
Voter Considerations
The Lt. Governor argues that adding a candidate to the ballot with a UUP designation
could result in voter confusion, deception, and even frustration of the democratic process at the
general election. Little risk of that exists here. UUP declared its intent to join the race almost
immediately after Representative Chaffetz announced its resignation. UUP was uniquely diligent

177

Breck v. Stapleton, No. 1:17-CV-36, 2017 WL 1319742, Slip Op. at 10-11 (D. Mont. April 8, 2017) (rejecting
Montana’s argument that “putative candidates should start collecting signatures based on the mere possibility of an
election”); Green Party of Arkansas v. Priest, 159 F. Supp. 2d 1140, 1144 n.2 (E.D. Ark. 2001) (rejecting Arkansas’
argument that the Green Party could have become a recognized political party in the prior year even though the
special election at issue was “unknown and unforeseen” at that time).
178

Burdick, 504 U.S. at 437 (1992) (citing Storer v. Brown, 415 U.S. 724, 736 (1974)).

179

Williams, 393 U.S. at 33.

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and public in working to access the ballot as a party. A demonstrated constituency of voters is
interested in an alternative to the Republican, Democratic, independent, and write-in candidates.
The additional option at the polls would benefit more than harm voters.
Even if a separate election were held, the Lt. Governor has not shown, beyond his own
assumption, that voter turnout would suffer. It is equally easy to speculate that a stand-alone
special election to elect a congressional candidate could draw voters disinterested in municipal
elections.
The Lt. Governor’s voter considerations are not a sufficient interest to justify barring
participation of new parties in the Special Election.
Political Stability and Ballot Overload
The Lt. Governor argues that the State interest in promoting the stability of the political
system by avoiding splintered parties and unrestrained factionalism justifies barring the UUP, its
designated candidate, and interested voters from participating in the Special Election. The Lt.
Governor also asserts an interest in preventing ballot overload with frivolous candidacies by
requiring a preliminary showing of a significant modicum of support.
These interests are not impaired by the UUP’s participation in the Special Election. The
UUP has demonstrated with its petition that it has the support required by the Election Code.
And by organizing as a political party, UUP is countering factionalism and giving voters a
consolidated voice distinct from the established political parties.
The Lt. Governor Could Have Accommodated Formation of a New Political Party Before the
Special Primary Election.
The failure of the Special Election Procedures to accommodate new political parties is
entirely unnecessary because Utah law allows the Lt. Governor complete control over

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congressional special elections, 180 subject only to constitutional considerations. The statutes do
not constrain imaginative design of a complete process. This flexibility is wise, given the unusual
circumstances that are inherent in congressional special elections. 181
As the UUP suggested at argument, the Lt. Governor could have designed an entirely
customized process 182 like those used in Georgia or Montana 183 or could have opted to allow
formation of new political parties concurrent with candidate declarations. Candidates of
prospective political parties would be at risk of not having ballot access with party identification
if their designated party failed to form, but this is no reason to completely prohibit new parties
from arising in response to a new political circumstance. This risk is certainly less than the
burden of complete exclusion and is a reasonable risk for a candidate willing to link fate to a
prospective party. 184
The steps for formation of a new political party in Utah are not complex:
•

The prospective new party presents declaration of intent to form new political party.

•

The prospective new party submits the information required by Utah Code § 20A-8103(2)(c).

•

The prospective new party submits petition signatures.

•

The Lt. Governor makes the determinations required by Utah Code § 20A-8-103(6) &
(7) regarding required number of voters’ signatures, name and emblem of prospective
new party.

•

The prospective new party files the names of the party’s officers or governing board
(Utah Code § 20A-8-106(1)) and constitution and bylaws (Utah Code § 20A-8-101(b)).

180

Utah Code § 20A-1-102(28); Stipulated Facts ¶ 7.

181

Supra, at 5.

182

Transcript, 18-27, referring to documents filed as docket no. 39-1, attached to Defendant’s Response to Plaintiff’s
Alternative Election Calendar (Options A, B and C), docket no. 39, filed July 17, 2017.
183

Id. at 92–94.

184

To ameliorate that risk, the schedule could have permitted a concurrent conditional unaffiliated application or
have provided that a candidate of a failed prospective party would pass to the ballot as unaffiliated. Nothing in the
Election Code bars this in a congressional special election.

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•

The Lt. Governor certifies the new political party.

These steps could have been outlined concurrent with the early stages of candidacy, allowing
prospective parties and prospective candidates to qualify at the same time, and still use the
municipal primary and general election dates.
This schedule overlays the process of formation of a new political party (italics) with the
Lt. Governor’s Special Election Procedures:
Date
May 19, 2017
(12:00 p.m.)
May 19, 2017
(1:00 p.m.)
May 22, 2017
(5:00 p.m.)
May 25, 2017
(5:00 p.m.)
May 26, 2017
(5:00 p.m.)
May 27, 2017
June 2, 2017

June 12, 2017
(12:00 p.m.)
June 12, 2017
(12:00 p.m.)
June 12, 2017
(12:00 p.m.)
June 16, 2017
June 16, 2017
June 19, 2017
(12:00 p.m.)
June 19, 2017
(12:00 p.m.)

Event
Deadline to present declaration of intent to form new political
party
Declaration of candidacy and intent to gather signature period
begins for all candidates
Deadline for prospective new parties seeking to participate in
the special election to submit the information required by Utah
Code § 20A-8-103(2)(c)
Deadline for prospective new parties seeking to participate in
the special election to submit petition signatures
Declaration of candidacy and intent to gather signature period
ends for partisan candidates
First day a party or prospective new party may hold a
nominating convention
Lt. Governor makes determinations required by Utah Code §
20A-8-103(6) & (7) regarding required number of voters,
name and emblem of prospective new parties
Deadline for partisan signature gathering candidates to submit
petition signatures for existing and prospective new parties.
Declaration of candidacy and signature submission period
ends for unaffiliated candidates
Deadline for prospective new parties to file the names of the
party’s officers or governing board (Utah Code § 20A-8106(1) and constitution and bylaws Utah Code § 20A-8-101(b)
Lt. Governor certifies qualified signature gathering candidates
Lt. Governor certifies new political parties
Last day for political parties to certify candidates nominated at
convention to the Lt. Governor
Lt. Governor issues a preliminary Special Primary Election
ballot certification and delivers it to county clerks

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By concurrently allowing prospective parties and candidates to qualify, the Lt. Governor’s
schedule using the already set municipal primary and general elections can be preserved.
This schedule, at this date, would have resulted in certification of new parties by before
the deadline to certify candidates from party conventions, giving certainty as of that date,
allowing full participation in primary elections. The interests argued by the Lt. Governor are also
satisfied by this schedule and are not contradicted by concurrently allowing prospective parties
and candidates to qualify.
Administrative Burdens
As discussed above, administrative burdens are of limited constitutional value. While the
burden of allowing concurrent party and candidate qualification are greater than the office
administrative burdens if new parties are prohibited, the concurrent burdens are not shown to be
impossible. And the Lt. Governor’s office has demonstrated that it can handle these concurrent
burdens because it has actually done so.
Costs
Similarly, additional reasonable costs are not usually given constitutional dignity. But the
costs of party formation are inevitable if a party will form. So, the only question is whether
concurrent costs of party and candidate qualification are too great for the State to bear. Again,
the record demonstrates the Lt. Governor’s office has borne these concurrent costs.
Time
The Lt. Governor’s desire to join the Special Election with municipal elections already
scheduled for August 15 and November 7, 2017, is satisfied by a concurrent schedule.

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Voter Considerations
By allowing concurrent party and candidate qualification on this accelerated schedule,
there would be no voter confusion, deception, or frustration of the democratic process at the
conventions, primary Special Election or general Special Election. The only confusion could be
in the period of concurrent uncertainty before a party convention, when a candidate declares for a
party yet to be formed. But that potential confusion could be minimized by clear statements of
conditions and is confined to the first month of a nearly six-month Special Election Procedure.
Political Stability and Ballot Overload
The concurrent process does not present significant risks to political stability or ballot
clarity. As the facts have developed, only one new party has emerged with the strength and
rapidity to achieve ballot access.
The Facts Demonstrate the UUP and its Candidate Are Ready to Participate in the Special
Election.
The actual performance of the UUP and the Lt. Governor’s Office in the recent months
has allowed the UUP to form well in advance of the special primary election. This demonstrates
the viability of alternative procedures because the Lt. Governor has actually accommodated party
formation well before the deadline to certify the Special General Election ballot.
And the UUP could have been certified even earlier, in time to participate in the Special
Primary Election if that had been necessary. The three greatest factors preventing certification of
the UUP prior to the certification of the special primary election ballot were within the exclusive
control of the Election Office. The Election Office was not required to take 30 days to review the
UUP petition. But it did, even though the work could have been completed in two days. No
justification has been offered for the 15 days the Election Office used to review the UUP
organizational documents and there is no minimum statutory time requirement for that process.

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Finally, review of the UUP documents submitted July 17th did not require until July 27th, when
the Lt. Governor’s response was given to the UUP. Had those times been shortened, the UUP
could have been registered before the convention and ready to appear on the Primary Special
Election ballot if more than one UUP candidate had declared.
But the special primary election deadline is artificial on the facts presented, because only
one candidate declared as a member of the UUP. A primary election is not needed for UUP in
this circumstance. The May 19 Order itself makes a special primary election conditional: “If a
special primary election is needed, it shall be held on the same day as the municipal primary
election, August 15, 2017.” 185 Because Jim Bennett is the unopposed nominee of the UUP, Utah
law would not require the UUP to participate in a special primary election. Without the need for
a primary election, UUP is ready to participate in the special general election.
State Interests Do Not Justify Exclusion of the UUP from the Special Election.
In summary, the Lt. Governor’s proffered interests do not justify complete exclusion the
UUUP and its candidate from the Special Election. And those interests would not have prevented
concurrent party and candidate qualification. Most importantly, the State’s interests are satisfied
by the factual development to date because the UUP and Mr. Bennett are fully prepared to
participate in the Special Election. Under the Anderson/Burdick test, the Special Election
Procedures burden Plaintiffs’ First and Fourteenth Amendment rights without sufficient
justification. Therefore, the Special Election Procedures violate Plaintiffs’ rights to the extent
they exclude the presence of UUP and Mr. Bennett on the Special Election ballot.

185

Stipulated Facts ¶ 30.

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Plaintiffs Will Suffer Irreparable Harm in the Absence of Preliminary Relief.
Because Plaintiffs are likely to prevail on the merits of their claims, the remaining
preliminary injunction factors are not far from reach. In First Amendment cases, “the
likelihood of success on the merits will often be the determinative factor.” 186 The record
supports such a result here.
Plaintiffs will suffer irreparable harm in the absence of preliminary relief. The
Supreme Court has held that “[t]he loss of First Amendment Freedoms, for even minimal
periods of time, unquestionably constitutes irreparable injury.” 187 This particular Special
Election, which is now scheduled for November 7, 2017, will only be held once. Without
relief, the UUP, its candidate Mr. Bennett, and their supporters will be unalterably
excluded from the Special Election—a result that money damages could not redress. This
factor weighs strongly in favor of the injunction.
The Balance of Equities Is Strongly in Plaintiffs’ Favor.
The relative balance of the burden on Plaintiffs against the insufficient interests of
the State shows Plaintiffs have equities on their side. The severe nature of the harm by
complete exclusion from a significant election also shows the equities favor Plaintiffs.
The diligence of the UUP and Mr. Bennett weigh heavily in Plaintiffs’ favor. Although
party formation was omitted from the Special Election Procedures, they made every
reasonable attempt. Though they were rebuffed in their early attempts to form a party and

186

Hobby Lobby Stores, Inc. v. Sebelius, 723 F.3d 1114, 1145 (10th Cir. 2013), aff'd sub nom. Burwell v. Hobby
Lobby Stores, Inc., 134 S. Ct. 2751, 189 L. Ed. 2d 675 (2014) (quoting ACLU of Ill. v. Alvarez, 679 F.3d 583, 589
(7th Cir.2012), cert. denied, ––– U.S. ––––, 133 S.Ct. 651, 184 L.Ed.2d 459 (2012)).
187

Elrod v. Burns, 427 U.S. 347 373 (1976) (plurality opinion); Hobby Lobby, 723 F.3d at 1145 (same).

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designate a candidate, 188 the Plaintiffs have demonstrated compliance with reasonable
expectations. This factor strongly weighs in favor of granting the injunction in favor of
Plaintiffs.
The Injunction Is in the Public Interest.
The injunction serves the public interest. This factor of the test for preliminary
injunctions looks beyond the private balance of equities to the broader impact of the injunction
on the public. The Tenth Circuit has held that “it is always in the public interest to prevent the
violation of a party’s constitutional rights.” 189 Beyond the theoretical benefit to the public
interest of enforcing the First and Fourteenth Amendments, the injunction serves to provide
another option to voters in the Special Election. Failure to issue an injunction would deny voters
an important choice. This factor weighs heavily in favor of granting the injunction.
The preliminary injunction alters the status quo, requires the Lt. Governor to take action,
and grants Plaintiffs the most significant relief they seek in their complaint, though declaratory
judgment, nominal damages, attorney’s fees, and costs are not adjudicated. In spite of these
factors disfavoring this injunction, Plaintiffs have made a strong showing of the likelihood of
success on the merits and the equities are strongly in their favor.
No Bond Is Required.
Under Federal Rule of Civil Procedure 65(c), “[t]he court may issue a preliminary
injunction . . . only if the movant gives security in an amount that the court considers
proper to pay the costs and damages sustained by any party found to have been

188

During this litigation, the Lt. Governor’s Office has exhibited very professional cooperation in the UUP
certification process.
189
Hobby Lobby, 723 F.3d at 1145 (10th Cir. 2013) (quoting Awad v. Ziriax, 670 F.3d 1111, 1131–32 (10th Cir.
2012)).

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wrongfully enjoined or restrained.” 190 Although the Lt. Governor has not requested a
bond, and Plaintiffs have not argued against the bond requirement, the bond requirement
must be addressed. 191
Under the circumstances, no bond is required from Plaintiffs. Despite the
mandatory nature of the language in the Rule, trial courts have “wide discretion under
Rule 65(c) in determining whether to require security.” 192 This preliminary injunction
enforces fundamental constitutional rights against the government. Waiving the security
requirement best accomplishes the purposes of Rule 65(c). 193
ORDER AND PRELIMINARY INJUNCTION
THEREFORE, IT IS HEREBY ORDERED that the Motion for Temporary Restraining
Order and Preliminary Injunction 194 is GRANTED and a Preliminary Injunction is GRANTED.
IT IS FURTHER ORDERED, ADJUDGED and DECREED that Lt. Governor Spencer
Cox is enjoined, directed, and ordered to place Jim Bennett, as the designated candidate of the
United Utah Party, a Qualified Political Party, on the special general election ballot for the
election set November 7, 2017, to fill the office of Representative of the Third Congressional
District for the State of Utah in the United States House of Representatives.

190

Fed. R. Civ. P. 65(c) (emphasis added).

191

Coquina Oil Corp. v. Transwestern Pipeline Co., 825 F.2d 1461, 1462 (10th Cir. 1987) (“[U]nlike the case in
which a bond is denied as unnecessary after full consideration, when a trial court fails to contemplate the imposition
of the bond, its order granting a preliminary injunction is unsupportable.”).
192

RoDa Drilling Co. v. Siegal, 552 F.3d 1203, 1215 (10th Cir. 2009).

193

Id. See also Complete Angler, LLC v. City of Clearwater, Fla., 607 F. Supp. 2d 1326, 1335–36 (M.D. Fla. 2009)
(“Waiving the bond requirement is particularly appropriate where a plaintiff alleges the infringement of a
fundamental constitutional right.”).
194

Docket no. 5, filed June 21, 2017.

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Dated August 2, 2017.
BY THE COURT:
____________________________
David Nuffer
United States District Judge

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