Utah Republican Party 117 E South Temple
Salt Lake City, UT 84111 www.utgop.org
December 3, 2015 VIA EMAIL AND U.S. MAIL Lieutenant Governor Spencer J. Cox Utah State Capitol Complex, Ste. 220 Salt Lake City, Utah 84114-2325 Email: email@example.com Dear Lt. Governor Cox: I write as a follow up to my letter a few weeks ago, even though you said it was unnecessary, to clarify what, if any, disagreements exist between the Utah Republican Party (the Party) and your office regarding SB54 and the matters raised at the recent hearing in Utah Republican Party v. Herbert, et al., Case No. 2:14-cv-876-DN (D. Utah). I am in receipt of your recent letter to the Party dated November 19, 2015, and your offices letter to Utah Senator Todd Weiler dated November 20, 2015. Background It is important in discussing these matters that we acknowledge how we got to this point. Your letters argue that the Partys views are inconsistent with the intent of SB54, but you do not point to anything in the public record to support that assertion.1 To the contrary, your office spent the better part of this past year arguing that the intent of SB54 was irrelevant.2 If anything, the legislative history of SB54 reveals its unconstitutional overreach, as lawmakers admitted that it was the product of an agreement with Count My Vote to compromise the Partys dominance and efforts to hold Republican candidates accountable to the Party platform, in part by forcing the Party to choose to open its primary to unaffiliated voters.3
1 The Utah Legislatures floor debates regarding SB54 are available at http://le.utah.gov/jsp/jdisplay/ billaudio.jsp?sess=2014GS&bill=sb0054&Headers=true. 2 See, for example, the brief your counsel filed accusing the Party of violating a Court order by trying to introduce evidence concerning the Legislatures purpose or intent in passing SB54. Doc. 194 at 36. 3 See Senate, day 24 (Day 24), at approx. 53:03 (statement of Sen. Bramble); id. at approx. 1:02:02 (statement of Sen. Hillyard); id. at approx. 1:20:25 (statement of Sen. Jones); id. at approx. 1:01:21 (statement of Sen. Weiler); audio file of floor debate in the Senate, Day 37, at approx. 23:55 (statement of Sen. Bramble); id. at approx. 30:59 (statement of Sen. Dabakis); id. at approx. 41:18 (statement of Sen. Weiler); audio file of floor debate in the House, Day 37, at approx. 1:40:01 (Rep. Powell); id. at approx.
Lt. Governor Cox December 3, 2015 Page 2 of 9 The Court has now struck down that part of SB54. But the Court upheld the remainder of SB54 based on the positions your office took in the litigation. Recall how the Party initially raised in its lawsuit concerns about how SB54 would have the State intrude on the Partys internal candidate selection process. Your office publicly disputed those allegations and whether the Party needed to make any changes to its rules or procedures to certify its preferred candidates to the general election ballot.4 Your representative admitted under oath that you have little, if any, interest or authority to review the Partys rules or dictate to the Party how it should select its candidates.5 Based on the position you took, the Court rejected the Partys concerns that its nominee may not necessarily be a party member or committed to the party platform, suggesting instead that the Party should adjust its membership requirements to resolve them.6 The Court summarized your position to give the Party assurances that [t]he State has nothing to say about whos the member of a party, at least under this statute, except to say its determined in accordance with party rules.7 In his formal order denying the Partys preliminary injunction motion, Judge Nuffer explained that a candidate may not file a declaration of candidacy for a political party of which the candidate is not a member, except to the extent that the political party permits otherwise in the political partys bylaws.8 Significantly, his analysis of that issue invited the Party to file objections to a candidates declaration of candidacy under Utah Code 20A-9-202(5) as one way to ensure that candidates comply with its rules.9 I understand from your letters of November 19 and 20 that you intend to overrule any objection filed by the Party challenging a candidate who attempts to circumvent the Partys rules and seek its nomination by signature-gathering. After the April 10 hearing where the Court denied the Partys preliminary injunction motion, the Party acted in reliance on the Courts statements and your offices sworn testimony, amending its Constitution and Bylaws to address the issues raised by SB54, as follows:
- The Party amended Article I, C of its Constitution to restrict membership to those who comply with its internal rules: Party membership is open to any resident of the State of Utah who registers to vote as a Republican and complies with the Utah Republican Party Constitution and Bylaws ....10
1:45:46 (statement of Rep. Nelson); id. at approx. 1:53:42 (statement of Rep. Chavez-Houck); id. at approx. 1:56:28 (statement of Rep. King); id. at approx. 2:24:26 (statement of Rep. McCay). 4 See deposition of Mark Thomas, Director of Elections (Thomas Tr.), at 119:6-124:7, 131:14-17, 132:9-133:15; 145:18-147:8; 148:24-149:23; 151:21-152:25. 5 Id. at 99:11-103:21, 103:17-104:19, 111:7-112:10, 133:3-24, 135:7-136:5. 6 4/10/2015 Hrg. Tr. at 124:7-12. 7 Id. 8 September 24, 2015 Order, Doc. 170, at 20. 9 Id. at 20 n.79. 10 2015 Utah Republican Party Constitution (hereinafter Const.) Art. I, C.
Lt. Governor Cox December 3, 2015 Page 3 of 9
- The Party amended its Bylaws to require that any candidate choosing to run for its nomination shall sign and submit a certification that they will comply with the rules and processes set forth in the Utah Republican Party Constitution and these Bylaws .11
- The Party amended the specific provisions of its caucus/convention candidate selection
procedure to provide that any candidate for an office that receives 60% or more of the votes cast at any point in the balloting process at the state nominating conventions shall proceed to the general election, nominating the top two candidates to run in a primary election only if neither receives 60% or more of the delegates vote at the convention.12 These are the only ways that the Party authorizes any candidate to appear on the general election ballot with its official mark and endorsement.
After enacting these amendments, on August 18, 2015, the Party sent a letter to your office designating itself a QPP in the 2016 election cycle, certifying its intent to nominate candidates in 2016 in accordance with its internal rules and procedures and Utah Code Ann. 20A-9-406 without prejudice to the positions the party has asserted in the matter Utah Republican Party v. Herbert, et al., Case No. 2:14-cv-876 (D. Utah), challenging the constitutionality of recent amendments to the Utah Election Code. On October 27, 2015, the Court held a hearing on pending motions for summary judgment. At that hearing, the Court pointed out that 20A-9-101(12)(d) only required that members of a QPP be permitted to seek nomination by either or both convention method or signature gathering, asking your counsel to tell me what that means.13 In response, your legal counsel admitted that those provisions should be interpreted to hold that a QPP only has to permit nomination by convention under 101(12)(d).14 Your counsel suggested that provision conflicted with 20A-9-406(3), which, he argued, reaffirm[ed] the right of the individual,15 indicating that would be the next lawsuit.16 Analysis 1. Judicial Estoppel We are ready to pursue it, if needed, but this issue does not have to be the next lawsuit. As you know, based on the arguments presented in the lawsuit, the Court granted summary judgment to the Party, ruling that SB54 was unconstitutional, and striking down 101(12)(a), because it would have forced association with unaffiliated voters in any primary election, contrary to the Partys candidate selection processes. Your November 19 and 20 letters now threaten to disqualify the Party as a QPP if it does not allow its members to seek its nomination by both
11 2015 Utah Republican Party Bylaws (Bylaws), 8.0(A). 12 Const. Art. XII.2.I & 5.A. 13 10/27/2015 Hrg. Tr. at 34:7-9. 14 Id. at 34:20-24, 35:17-23, 36:8-10. 15 Id. at 34:25-35:6. 16 Id. at 35:13-15.
Lt. Governor Cox December 3, 2015 Page 4 of 9 convention and signature-gathering methods. First, that is contrary to the positions that you have taken in the lawsuit, especially to what your attorney asserted at the October 27 hearing.
Where a party assumes a certain position in a legal proceeding, and succeeds in maintaining that position, he may not thereafter, simply because his interests have changed, assume a contrary position, especially if it be to the prejudice of the party who has acquiesced in the position formerly taken by him.17
You can see above how the Party relied on the positions your office took in defense of SB54, and you cannot dispute that Judge Nuffer relied on those statements in rendering his rulings, including where he left the rest of SB54 in tact. If, as it appears, the Attorney Generals Office is recommending that you force the Party, under threat of disqualification, to accept candidates who admittedly do not comply with the rules governing its candidate selection process, you are being terribly misled. I urge you to reconsider.
2. Either or Both Contrary to your letters and the statements of your counsel at the October 27 hearing, we do not believe there is any need to read 101(12)(d) and 406(3) as conflicting. Section 101(12)(d) requires that a QPP permit its members to seek its nomination by either or both of two methods. And 406(3) merely provides that an individual may only seek the nomination of the qualified political party by using a method described in Section 20A-9-407, Section 20A-9-408, or both. The phrase either or both in these provisions should be construed pursuant to its plain language. The rules of statutory construction include the conjunctive/disjunctive canon which is [t]he doctrine that in a legal instrument, and joins a conjunctive list to combine items, while or joins a disjunctive list to create alternatives.18 In determining what a statute requires, a disjunctive obligation is understood as an alternative obligation, meaning [a]n obligation that can be satisfied in at least two different ways, at the choice of the obligor.19 It is almost impossible to conclude otherwise. Note that the obligor in this case would be the Party.
Other authorities recognize a similar approach in interpreting the disjunctive or.
While there may be circumstances which call for an interpretation of the words and and or, ordinarily these words are not interchangeable. The terms and and or are often misused in drafting statutes.... The literal meaning of these terms should be followed unless it renders the statute inoperable or the meaning becomes questionable.20
17 New Hampshire v. Maine, 532 U.S. 742, 749 (2001). 18 See Conjunctive/disjunctive canon, Black's Law Dictionary (10th ed. 2014). 19 See Obligation, Blacks Law Dictionary (10th ed. 2014). 20 1A Norman J. Singer, Statutes and Statutory Construction 21.14, at 183-84 (6th ed. 2002); Foutz v. United States, 72 F.3d 802, 805 (10th Cir. 1995) (The word or is not a fertile word which is subject
Lt. Governor Cox December 3, 2015 Page 5 of 9 Utah cases have consistently construed [t]he disjunctive or between words in a statute to delineate alternative ways a person might trigger the laws applicability.21 In the only case we could find where the Utah Supreme Court was asked to interpret the disjunctive or in the context of Utahs election code, it rejected the interpretation recommended by the State that would have disqualified the Democratic Partys certified replacement candidate on grounds that or is disqualified stood in contrast to the preceding phrase dies, resigns, etc., thus demonstrating the legislatures intent to allow a party to designate a replacement candidate regardless of when the disqualification arose.22 For the same reason, the words either or both in 101(d) and 406(3) clarify what the Party is obligated and not obligated to permit its members to do.23
And contrary to your letters, 406(3) and 406(4) should not be read to impose any obligation on the Party, except that which is, as you say, specifically require[d].24 I would request that you identify any provision in 20A-9-407, 20A-9-408, and 20A-9-409 that the Party is violating by not allowing members to seek its nomination by signature-gathering. Once you accept the position your office has already taken that 101(12)(d) only requires that a QPP permit its members to seek its nomination by either or both of the two methods,25 there is nothing in 407, 408 or 409 obligating that it do more. And forcing the Party to allow members to seek its nomination by to varied constructions.). In Citizens for Responsible Gov't State Political Action Comm. v. Davidson, 236 F.3d 1174, 1190 (10th Cir. 2000), the Tenth Circuit rejected an argument similar to yours in striking down a Colorado campaign finance law, concluding that that the legislature meant what it clearly said, i.e., that all four uses of the word or in 103(11) were intended to signify or not sometimes or and sometimes and. Similarly, in Riddle v. Hickenlooper, 927 F. Supp. 2d 1092, 1098 (D. Colo. 2013) revd, 742 F.3d 922 (10th Cir. 2014), after the Colorado district court upheld the states constitutional amendment setting campaign contribution limits for a primary or a general election, thus indicat[ing] an intent to distinguish between primary and general elections, the Tenth Circuit reversed only after pointing out that the plaintiffs were not challenging the Colorado Constitution but rather were confining their challenge to a Colorado statute that did not set contribution limits based on who has a primary and who doesnt. Riddle, 742 F.3d at 926. 21 State v. Martinez, 896 P.2d 38, 40 (Utah App. 1995) (citing State v. Wight, 765 P.2d 12, 20 (Utah App. 1988) (Garff, J., concurring) as noting that or is [a] disjunctive particle used as a function word to indicate an alternative between different or unlike things) (quoting Blacks Law Dictionary 987 (5th ed. 1979)), and 1A Singer, Sutherland Statutory Construction 21.14); see also State v. Parduhn, 2011 UT 55, 26 (construing law provid...