Utah Democrats SB 54 memo

8/18/2019 Utah Democrats SB 54 memo

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Charles A. Stormont (11490)David P. Billings (11510)

STORMONT BILLINGS, PLLC

525 East 100 South, #275BSalt Lake City, UT 84102Tel: 801-810-7049

[email protected]

[email protected] Attorneys for Intervenor Utah Democratic Party

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF UTAH, CENTRAL DIVISION

UTAH DEMOCRATIC PARTY,

Intervenor,

UTAH REPUBLICAN PARTY,

Plaintiff,

v.

SPENCER J. COX, in his Official Capacityas Lieutenant Governor of Utah,

Defendant.

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UTAH DEMOCRATIC PARTY’S

RESPONSE TO [80] UTAH

REPUBLICAN PARTY’S

MEMORANDUM RESPONSE TO

DOCKET ORDER 77

Case No. 2:16-cv-00038-DN

Judge David Nuffer

Pursuant to this Court’s April 11, 2016 Order,1 the Utah Democratic Party (UDP), by and

through its counsel, respectfully responds to the memorandum filed by the Utah Republican Party

(URP) as follows:

1 See Docket No. 77.

Case 2:16-cv-00038-DN Document 82 Filed 04/14/16 Page 1 of 17


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INTRODUCTION

If there was any doubt after “URP formally declared to the LG that it would restrict its

candidate-selection procedures to the convention method”2 on December 3, 2015, that doubt has

been clearly removed. URP has been asked whether “it will comply with the requirements of the

QPP statute as confirmed” by the Utah Supreme Court’s recent opinion.3 In response, URP clearly

stated that it will NOT comply with the law.4 URP asserts its refusal to follow the law is

permissible because of a claimed Constitutional right. But as set forth below and in other briefings

filed with the Court, no such right actually exists. URP’s arguments ignore controlling precedent,

mischaracterize other precedent, and fail upon closer examination. Thus, at the end of the day,

URP stands as a self-declared QPP that does not satisfy the requirements of a QPP. The time has

come for the LG to enforce the Election Code, and should he continue to refuse to do so, he will

further violate UDP’s Constitutional rights.

ARGUMENT

I. THE EITHER OR BOTH PROVISION IS NOT AN UNCONSTITUTIONAL CONDITION.

URP claims section 20A-9-101(12)(d) impermissibly burdens the party. Not so. For the

reasons noted in prior briefings,5 which are summarized here, UDP disagrees with this assertion.

This Court previously held on the First Case that (1) “the State can constitutionally require

the Party to select its candidates through a primary election and the State can lawfully certify the

Party’s candidates who receive the most votes in the primary election as the candidates to appear

on the general election ballot;”6 (2) “SB54 does not prevent the Party from holding neighborhood

2 Docket No. 75 at 11 (citing Docket No. 74-1).3 Docket No. 77.4 Docket No. 80 at 14.5 See Docket Nos. 49 at 35- 39; 51 at 21-27.6 First Case, Docket No 170 at 17.



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caucus meetings and conducting those meetings as the Party chooses. Moreover, not all regulation

of a party’s internal processes is prohibited or constitutionally questionable;”7 and (3) nor is there

“any constitutional deficiency in a party’s candidate gaining access to the general election ballot

based on a plurality vote from a primary election.”8

The Utah Supreme court held that “[t]he statute does not require the Republican Party to

seek certification as a qualified political party, and it does not purport to mandate the adoption of

any provisions in its constitution bylaws, rules, or other internal procedures.”9 An RPP “that

chooses to function as such incurs no obligation under subsection (12)(d). However, if a party

seeks certification as a QPP, it must comply with the statute’s requirements. This does not amount

to internal control or regulation of the party by the State.”10

URP’s argument that the party has the

constitutional right to dictate how its nominees are chosen lacks merit, having been rejected

multiple times by multiple courts. And rightly so.

URP argues that requiring a continuing political party to choose between only accessing

the ballot through signature gathering as an RPP or accessing the ballot by permitting its members

the choice of exclusively gathering signatures is an unconstitutional condition because URP has to

choose between two unconstitutional options—both of which require giving up its rights to

determine how a nominee is selected.11

But this argument necessarily presupposes that URP has a

constitutional right to choose the method by which its candidates access the ballot. UDP has been

unable to locate a single instance in which a Court has found that a party’s membership

requirements can be used to veto a state’s otherwise constitutional Election Code.

7 Id. at 18.8 Id. at 20.9 Utah Republican Party v. Cox, 2016 UT 17, ¶ 6, --- P.3d --- (per curiam).10 Id. 11

See Docket No. 80 at 6-14.



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That the Court held the Signature Gathering Provision was constitutionally questionable

standing alone is irrelevant to this analysis because the Court also found it critical that the Signature

Gathering Provision does not stand alone.12

Moreover, the Court previously upheld the RPP path

to access the ballot,13 which mandates that a political party’s candidates gather signatures and

participate in a primary.14

“Neither the right to associate nor the right to participate in political

activities is absolute.”15

For over 40 decades, the U.S. Supreme Court has consistently held that a State may choose

either the convention method or the primary method of ballot access, not the political party or the

candidate. And for over 40 years the high Court has held neither parties nor candidates have

constitutional claims to choosing either method. “[T]he State may limit each political party to one

candidate for each office on the ballot and may insist that intraparty competition be settled before

the general election by primary election or by party convention,”16

and the State is under no

obligation to choose one nomination methodology over another to ensure candidates have a “fair

shot” at the primary ballot.17 “The procedures [convention and primary] are different but the Equal

Protection Clause does not necessarily forbid the one in preference to the other.”18

URP’s reliance on Democratic Party v. Wisconsin ex rel. La Follette,19

Cousins v.

Wigoda,20

and Ray v. Blair 21

are misplaced. All three involve a political party’s national

12

See Docket No. 75 at 31-3413 See First Case, Docket No. 170 at 15-17

14 See Utah Code § 20A-9-403(3)(b)-(4)(a)(i); id. § 20A-9-405.

15 CSC v. Letter Carriers, 413 U.S. 548, 567 (1973) (citing Rosario v. Rockefeller , 410 U. S. 752 (1973); Dunn v.

Blumstein, 405 U. S. 330, 336 (1972); Bullock v. Carter , 405 U. S. 134, 140-141 (1972); Jenness v. Fortson, 403 U.

S. 431 (1971); Williams v. Rhodes, 393 U. S. 23, 30-31 (1968)).16 Am. Party of Tex. v. White , 415 U.S. 767 U.S, 781 (1974) (citing Storer v. Brown, 415 U.S. 724, 733-36 (1974)).17 See N.Y. State Bd. of Elections v. Lopez Torres, 415 U.S. 196, 205-06 (2008).18 White, 415 U.S. at 781-82. 19 450 U.S. 107 (1981).20 419 U.S. 477 (1975).21

343 U.S. 214 (1952).



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convention to choose its Presidential and Vice Presidential nominees, and the Supreme Court’s

holdings rely on the absence of a place for a State role in choosing such nominees,22

unlike the

nomination of candidates for federal, state, and county offices within a state.23

While “[a] political

party has a First Amendment right to limit its membership as it wishes, and choose a candidate-

selection process that will in its view produce the nominee who best represents its political

platform,”24

“[t]hese rights are circumscribed . . . when the State gives the party a role in the

election process,” such as “by giving certain parties the right to have their candidates appear with

party endorsement on the general-election ballot.”25 Once the State assumes this role, “the State

acquires a legitimate governmental interest in assuring the fairness of the party’s nominating

process, enabling it to prescribe what that process must be.”26

“States may, and inevitably must,

enact reasonable regulations of parties, elections, and ballots to reduce election-and

campaign-related disorder.”27

URP cites to Langone v. Secretary of the Commonwealth

28

and Hopfmann v. Connolly

29

for the proposition that URP’s rules and procedures trump state law. Neither case support such an

22 See, e.g., La Follette, 450 U.S. at 125 n.31 (“Any connection between the process of selecting electors [under U.S.

Const. Art. II, §1, cl. 2] and the means by which political party members in a State associate to elect delegates to

party nominating conventions is so remote and tenuous as to be wholly without constitutional significance.”);

Cousins, 419 U.S. at 489-90 (“The States themselves have no constitutionally mandated role in the great task of the

selection of Presidential and Vice-Presidential candidates.”); Ray, 343 U.S. at 229 (noting “more than twenty states

do not print the names of the candidates for electors on the general election ballot. Instead, in one form or another,

they allow a vote for the presidential candidate of the national conventions to be counted as a vote for his party’snominees for the electoral college.”).23

See, e.g., Washington State Grange v. Washington State Republican Party, 552 U.S. 442, 451 (2008) (“The States

possess a broad power to prescribe the Times, Places and Manner of holding Elections for Senators and

Representatives, which power is matched by state control over the election process for state offices.” (citations and

internal quotation marks omitted)).24 N.Y. State Bd. of Elections v. Lopez Torres, 552 U.S. 196, 202 (2008).25 Id. at 203.26 Id. (emphasis added).27 Timmons v. Twin Cities Area New Party, 520 U.S. 351, 358 (1997).28 446 N.E.2d 43, 388 Mass. 185 (Mass. 1983).29

769 F.2d 24 (1st Cir. 1985).



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argument. In Langone, Langone gathered the requisite number of signatures required under state

law, but did not garner the support of a sufficient number of delegates (15%) under the rules of the

Massachusetts Democratic Party (MDP), and the Secretary of the Commonwealth refused to place

him on the primary ballot as a result.30 The Massachusetts Supreme Judicial Court determined that

MDP’s 15% rule augmented state law, which merely “provid[ed] minimum requirements for

primary ballot access but permit[ed] imposition by the party of additional requirements that are

consistent with a primary election system and do not infringe the constitutional rights of candidates

and voters.”31 As the First Circuit explained in Hopfmann, “the Supreme Judicial Court of

Massachusetts has construed the state’s statutory ballot access requirements in Langone to

encompass, rather than to exclude, the Democratic Party’s 15 percent rule.”32

It is true that Utah’s ballot access provisions permit URP to require 60% delegate support

to access the ballot via the convention route.33

But the Utah Supreme Court has confirmed that an

RPP that wishes to enjoy the benefits of a QPP—including holding a nominating convention—

must permit its members the choice of either the signature gathering route or the caucus/convention

route, or both.34

URP may not impose additional, conflicting requirements under Utah law if it

wants to provide access to the ballot for its members by convention, unlike the Massachusetts law

at issue in Langone and Hopfmann. Thus, URP’s requirement that a candidate comply with its

convention process shows that URP does not comply with SB54’s requirements for a QPP. URP

admits as much.35

30 See 446 N.E.2d at 44-45.

31 Id. at 45-48.32 769 F.2d at 25.33 See generally Utah Code §§ 20A-9-407, id. 20A-9-409(2).34 See First Case, Docket No. 207 at 14 (“Because the URP and the CPU are QPPs, they must abide by the

provisions applicable to QPPs under SB54.”); Utah Republican Party v. Cox, 2016 UT 17, ¶ 6, --- P.3d ---- (“if a

party seeks certification as a QPP it must comply with the statute’s requirements.”).35

See Docket No. 80 at 11, 14-15.



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URP next suggests that its system does not violate the constitutional rights of its members,

citing to the White Primary Cases.36

But that issue is not before the Court, and even if it were,

“limiting the choice of candidates to those who have complied with state election law requirements

is the prototypical example of a regulation that, while it affects the right to vote, is eminently

reasonable.”37 The Utah Supreme Court and this Court have held that URP may choose to either

be an RPP or a QPP, but if URP wants to hold a nominating convention, it must comply with the

statutory requirements of a QPP,38

including permitting its members to bypass the convention

altogether. This does not place a candidate’s rights above a party’s. Rather, it expands options for

potential candidates, while “not purport[ing] to mandate the adoption of any provisions in the

constitution, bylaws, rules, or other internal procedures” of URP.39

In other words, it does not

burden URP’s rights in any way, and it most certainly does not burden a claimed right that the

Supreme Court has never recognized.

II. URP HAS NOT COMPLIED WITH THE R EQUIREMENTS OF A QPP AND HAS STATED IT

WILL NOT COMPLY WITH THOSE R EQUIREMENTS.

URP unequivocally stated it “Will NOT ‘Comply with The Requirements of the QPP States

As Confirmed In [The] Opinion,’ Utah Republican Party, 2016 UT 17, § 11 [sic].”40 The Utah

Supreme Court held that URP has chosen not to comply with the requirements of the QPP to date.41

In its memorandum, URP has again stated it will not revise its party Constitution and Bylaws to

36

See Docket No. 80 at 11 (citing United States v. Classic, 313 U.S. 299 (1941); Smith v. Allwright , 321 U.S. 649(1944)).37

Burdick v. Takushi, 504 U.S. 428, 440, n.10 (1992).38

See First Case, Docket No. 207 at 14 (“Because the URP and the CPU are QPPs, they must abide by the

provisions applicable to QPPs under SB54.”); Utah Republican Party v. Cox, 2016 UT 17, ¶ 6, --- P.3d ---- (“if a

party seeks certification as a QPP it must comply with the statute’s requirements.”).39 Cox, 2016 UT 17, ¶ 11 40 Docket No. 80 at 14.41 See Cox, 2016 UT 17, ¶ 11 (“If the Republican Party chooses to comply with the requirements of the QPP statute

as confirmed in this opinion, the relief sought by the Democratic Party . . . will be moot.”). See also id., ¶ 10

(quoting URP’s counsel’s statement that URP “would have to figure out a way how to change our constitution and

by-laws to conform to the state law”).



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bring them into compliance with section 20A-9-101(12)(d)42 as UDP has done.43 UDP agrees that

URP’s claims regarding the constitutionality of the Either or Both Provision remain a justiciable

controversy, but URP’s failure to comply also highlights that UDP’s Complaint is also a justiciable

controversy.44

As recently as January 19, 2016, the LG has stated that he will “rely on this certification[

the August 17, 2015 letter], and allow candidates access to the ballot through the

caucus/convention process, unless and until the parry official revokes that certification.”45

While

it is undisputed that “URP formally declared to the LG that it would restrict its candidate-selection

procedures to the convention method”46 on December 3, 2015, the LG has continued to treat URP

as a QPP even though URP does not meet the statutory requirements of a QPP. If there had been

any genuine doubt as to whether URP had “officially revoked” its August 17, 2015 certification

that it would comply with the statutory requirements of a QPP, URP’s latest memorandum puts

those doubts to rest. Therefore, the LG “cannot legally refuse to act.”47

Yet the LG continues to

permit URP candidates to access the ballot through the caucus/convention process. This ongoing

failure to enforce the law and failure to treat URP differently from UDP given URP’s

noncompliance violates UDP’s Constitutional rights.

When it comes to political parties, “[s]ometimes the grossest discrimination can lie in

treating things that are different as though they were exactly alike[.]”48

And “limiting the choice

of candidates to those who have complied with state election law requirements is the prototypical

42 See Docket No. 80 at 14-15.

43 See Docket Nos. 20 at ¶ 52; 20-3.44 Cf. Cox, 2016 UT 17, ¶ 11 (“If the Republican Party chooses to comply with the requirements of the QPP statute

as confirmed in this opinion, the relief sought by the Democratic Party . . . will be moot.”).45 Docket No. 73 at 3.46 Docket No. 75 at 11 (citing Docket No. 74-1).47 State v. Candland , 36 Utah 406, 104 P. 285, 290 (1909).48

Jenness v. Fortson, 403 U.S. 431, 442 (1971).



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example of a regulation that, while it affects the right to vote, is eminently reasonable.”49 Thus,

limiting nominating processes to political parties that comply with the Election Code’s reasonable

requirements is required under Article I, section 17 of the Utah Constitution and the First and

Fourteenth Amendments to the US. Constitution.50 “It is equally clear . . . that [a federal court’s]

deference to a state’s interest in orderly elections must be tempered by the risk that state regulation

will favor some parties and some party factions over others.”51

“As the Supreme Court noted in a

related context, ‘care must be taken not to confuse the interest of partisan organizations with

governmental interests.’”52

Thus, although a state’s interest in orderly elections allows it to imposereasonable, non-discriminatory restrictions on ballot access, a state may not go to

bat for political parties to assure that they remain ballot-qualified. In other words,a state has no interest in regulating political parties for the purpose of helping them

win or retain voter support. Political parties are nothing more than voluntaryassociations of individuals who band together in pursuit of shared political goals.

A party’s survival depends upon its ability to compete in the free marketplace of political ideas and ideals. The First Amendment limits states to a neutral role in that

competitive process. A state may not interfere with the associational rights of

political parties beyond what is necessary to assure honest and orderly elections.In short, a state’s interest is in orderly elections, not orderly parties, and it

may regulate political parties only as an incident to regulating elections.[53]

Given that URP has chosen not to comply with the requirements of a QPP and will not

comply with those requirements, there must be consequences. The LG has shifted his position

already regarding what conduct he will deem sufficient to treat URP as an RPP.54 URP’s express

statement that it will not comply with the law as clarified by the Utah Supreme Court leaves no

49 Burdick v. Takushi, 504 U.S. 428, 440, n.10 (1992).

50 See Anderson v. Cook , 102 Utah 265, 103 P.2d 278, 285 (1942) ( per curiam); Jenness, 403 U.S. at 442; accord

Timmons, 520 U.S. at 358 (“States may, and inevitably must, enact reasonable regulations of parties, elections, and

ballots to reduce election-and campaign-related disorder.”).51 San Francisco County Central Democratic Comm. v. Eu, 826 F.2d 814, 831 (9th Cir. 1987), aff’d sub nom. Eu v.

San Francisco County Democratic Central Comm., 489 U.S. 214 (1989).52 Id. (quoting Elrod v. Burns, 427 U.S. 347, 362 (1976) (plurality)).53 Id. 54

See Docket No. 75 at 11-12 (citing Docket Nos. 2-2 and 73).



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more room to shift. If the LG will still not enforce the requirements of a QPP he will further violate

UDP’s Constitutional rights.

III. URP’S CONSTITUTION AND BYLAWS PROHIBIT SIGNATURE GATHERING CONTRARY TO

THE R EQUIREMENTS OF SB54.

In order to be a member of URP, one must be a “resident of the State of Utah who registers

to vote as a Republican and complies with the Utah Republican Party Constitution and

Bylaws[.]”55

Similarly, a URP member who wishes to become a URP candidate must “sign and

submit a certification that they “will comply with the rules and processes set forth in the Utah

Republican Party Constitutions and these Bylaws and a disclosure statement” relating to the URP

Platform.56

An examination of URP’s “rules and processes” show that URP does not comply with

the requirements set forth by SB54 under the QPP path.

For example, a Republican “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.”57 “If no candidate receives 60% or more of the delegates’ vote at convention as

to a particular elected office, the URP nominates the top two candidates to run in a primary

election.”58

By contrast, section 409(4) requires “[a] qualified political party that nominates one or

more candidates for an elective office under Section 20A-9-407 and has one or more candidates

qualify as a candidate for that office under Section 20A-9-408 shall participate in the primary

election for that office.”59

Section 409(4) and URP Constitution Article XII, section 2(I) clearly

55 First Case, Docket No. 177-1 (Constitution) at 2 (Art. I.C).56 First Case, Docket No. 177-1 (Bylaws) at 22 (§ 8.0(A)).57 First Case, Docket No. 177-1 (Constitution) at 10 (Art. XII, § 2(I)) (emphasis added).58 Docket No. 75 at 15 (citing First Case, Docket No. 177-1 (Bylaws) at 18 (§7.0(D)(3))).59

Utah Code § 20A-9-409(4).



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conflict with one another. This is not just UDP’s reading of URP’s governing documents. URP

has unequivocally stated that “state law directly conflicts with the party convention rule”60

and

“[n]o other method of nominee selection is sanctioned under the Party Constitution or Bylaws.”61

While the LG has argued that the failure of URP’s governing documents to expressly

prohibit signature gathering somehow qualifies URP as permitting signature gathering, even this

argument shows that URP is not in compliance with SB54’s requirements. The LG explains that a

candidate can still pursue the signature gathering path if s/he first pursues the convention path and

fails. Such a candidate, the argument goes, will have complied with the processes set forth in

URP’s governing documents, and therefore could still use the signature gathering option because

the LG would place him/her on the ballot if s/he satisfied the signature gathering requirements.62

But a candidate who sought the nomination by signature gathering exclusively could not

“comply with the rules and processes set forth in the” the URP’s governing documents because no

such signature gathering process exists in those documents. Such a person would not qualify as a

member of the URP because they would necessarily have to violate the URP’s governing

documents. But compliance with those governing documents is a definitional requirement of URP

membership. Thus, URP does not “permit its members to seek its nomination by ‘choosing to seek

the nomination by either or both’ the convention and the signature process.”63

At best, if its

governing documents do not expressly prohibit signature gathering, they only permit it if the

candidate also sought nomination through convention. Either way, the governing documents do

not comply with section 101(12)(d)’s requirements of a QPP.

60 Docket No. 80 at 11.61 Id. at 16.62 See generally Docket No. 49 at 30-31.63

Cox, 2016 UT 17, ¶ 4 (quoting Utah Code § 20A-9-101(12)(d)).



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IV. R OBERT’S R ULES OF ORDER CONTAIN THE PROCESS BY WHICH URP MAY R EVOKE A

CANDIDATE’S MEMBERSHIP.

As URP notes in its memorandum,64 URP’s Constitution and Bylaws provide that “the

current edition of Robert’s Rules of Order shall govern all meetings of the Party,”65

including the

URP’s State Convention.66

And the current edition of Robert’s Rules of Order provide for the

revocation of membership: “‘an organization or assembly has the ultimate right to make and

enforce its own rules, and to require that its members refrain from conduct injurious to the

organization or its purposes. No one should be allowed to remain a member if his retention will

do this kind of harm.’”67 Such proceedings would fall short of a legal trial, with the admission of

hearsay and unsworn testimony.68

URP members who sought nomination by signature gathering,

but who otherwise met the membership definition of URP’s Constitution by first attempting to

seek nomination by convention, could thus have their membership revoked since URP remains

committed to its prior statements that such persons will have their membership revoked.69

Anyone

subject to such proceedings would be entitled to basic due process.70

On the other hand, anyone who attempts to seek nomination by signature gathering only,

as explained above, would not qualify for URP membership because s/he would not have complied

with the requirements of URP’s governing documents.71

By definition, such a person would not

64 See generally Docket No. 80 at 16-49 (citing and quoting Henry H. Robert, III Daniel H. Honemann and Thomas

J. Balch, Robert’s Rules of Order Newly Revised, Da Capo Press (11th ed. 2011) (RONR )).65 First Case, Docket No. 177-1 (Bylaws) at 23 (§11.0); accord Docket No. 80 at 16 (“In the URP Constitution and

the Bylaws, [RONR] is designated as the official parliamentary authority to govern procedures of the URP in all

areas not specifically addressed in those two governing documents.” (citing Bylaws at §11.0)).66

See id. at 19 (§7.5(C)(1)).67 Docket No. 80 at 23 (quoting RONR, p. 643, XX. (§ 61), ll. 7-11); accord Docket No. 80 at 17 (“Beginning on

page 643 of RONR are the procedures for discipline of a member of any society, including the URP.”).68 See RONR, p. 655, XX. (§ 63), ll. 24-35.69 See Docket Nos. 2 at ¶¶ 18-19, 30-31, 37; 41 at 2; 49-1 at 43:14-44:11; 57 at 2-3.70 See Docket No. 80 at 35-37 (quoting RONR, p. 656, XX. (§ 63), ll. 1-6, 19-32; 656, ll. 35 through 659, ll. 8.71 See Docket No. 80 at 18-19 (citing First Case, Docket No. 177-1 (Constitution) at 2 (Art. I.C)), (Bylaws) 20

(§§ 7.5(I)(1) and (3)), 22 (§ 8.0(A)).



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be a URP member and could not be its candidate for office.72 No revocation proceedings would be

necessary in such a scenario.73

In any case, URP’s memorandum details the procedure by which its wayward members

can be sanctioned and ultimately removed if they fail to comply with their certification that they

will follow their party’s rules and requirements as found in URP’s Constitution and Bylaws.74

V. URP MAY HAVE COMMENCED A R EVOCATION PROCEEDING.

While URP states that it “has not commenced any revocation proceeding against a member

as of April 11, 2016,”75 it is important to note a few things. First, this statement was filed two days

after April 11th

and still allows for revocation proceedings to have commenced in the interim.

Second, under Robert’s Rules of Order, removal proceedings must be private, with only the

summary results publicly known after the fact.76

Third, URP has disciplined its members in the

recent past. “The most recent disciplinary actions in accordance with these rules were undertaken

in 2006 and 2010.”77

While “[a] member’s act of gathering signatures does not disqualify him or her from also

seeking the party’s nomination through the convention process,”78

if a member opts to bypass the

convention altogether or ignores the will of the convention delegates by remaining on the primary

ballot if the candidate fails to secure more than 40% of the delegates’ votes, they will not be

considered by URP to be in compliance with the party’s Constitution and Bylaws.

72 See Utah Code § 20A-9-201(2)(a)(iii).

73 See supra Section III.74 Docket No. 80 at 17-18.75 Docket No. 80 at 49.76 See RONR, p. 655, XX. (§ 63), ll. 1-23.77 See Docket No. 80 at 20. See also First Case, Docket No. 69-4 (Dep. Trans. of James Evans) 156:4-157:6 (stating

URP uses Robert’s Rules of Order to remove delegates at a County Convention).78

Docket No. 80 at 49.



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Nor does the Constitution prohibit a political party from removing members whose

positions it disagrees with from the ballot. In Duke v. Masssey,79

David Duke, the founder of the

Louisiana chapter of the Knights of Klu Klux Klan, sought the Republican nomination for

president in 1992, but pursuant to Georgia Statute the presidential candidate selection committee

for the Georgia Republican Party (the Committee) “deleted Duke’s name from the list of potential

[R]epublican presidential candidates.”80

Duke sued Georgia Secretary of State Max Cleland and

the chair of the Committee in Federal Court, alleging Cleland and the Committee chair violated

his rights under the First and Fourteenth Amendment to the U.S. Constitution.81 The Court

concluded that “Duke does not have a right to associate with an unwilling partner, the Republican

Party. . . . the Committee did not infringe Duke’s right of association because the Republican Party

has a right to identify the people who constitute the association and to limit the association to those

people only.”82

While Duke had a procedural due process right to have his petition to be placed on

the ballot to be free from unfettered discretion, and an interest in being free from state

discrimination based on the content of his speech, his First and Fourteenth Amendment interests

“do not trump the Republican Party’s right to identify its membership based on political beliefs

nor the state's interests in protecting the Republican Party's right to define itself.”83

Similarly, in LaRouche v. Fowler ,84

Lyndon LaRouche again sought the Democratic

Party’s nomination for President in 1996 and had allegedly won two delegates to the party’s

national convention through votes he had received in primary elections in two states. But

79 Duke v. Massey, 87 F.3d 1226 (11th Cir. 1996).80 See id. at 1228-29 (citing O.C.G.A. § 21-2-193(a)).81 See id. at 1229.82 Id. at 1232 (citations and internal quotation marks omitted).83 Id. at 1232-33 (internal quotation marks omitted).84

152 F.2d 974 (D.C. Cir. 1998).



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Democratic National Committee (DNC) Chairman Donald Fowler, applying Democratic Party

rules, ruled that LaRouche was not a bona fide Democrat because of his expressed political beliefs,

was not to be treated as a qualified candidate, and that state parties should disregard any votes cast

for him.85 LaRouche sued, alleging the DNC had violated the Voting Rights Act and his rights

under the First and Fourteenth Amendments. 86

On Appeal, the D.C. Circuit held “viewpoint

discrimination by a political party . . . . is the sine qua non of a political party that it represent a

particular political viewpoint.”87

“Unlike a state, which is largely barred from making such

decisions, a political party must make these decisions.”88 “[E]ven if a political party is a state actor,

the presence of First Amendment interests on both sides of the equation makes inapplicable the

test applied to electoral restrictions where the First Amendment weighs on only one side.”89

While

a political party has every right to remove members who fail to meet the party’s membership

requirements, this does not give rise to a constitutional right to determine how its nominee is

chosen or to otherwise circumvent state law requirements for access to the ballot.

VI. THERE IS NO DIFFERENCE BETWEEN URP’S FIRST AND SECOND CAUSES OF ACTION

OTHER THAN THE R ELIEF SOUGHT.

URP concedes that “[t]he only substantive difference between the two causes of action is

the relief requested.”90

Further, URP judicially admits in its own complaint that the Second Cause

of Action is dependent upon the First Cause of Action.91

Thus, should the Court hold that SB54

does not violate URP’s constitutional rights by granting the LG summary judgment on URP’s

subparagraphs 73(b)-(g), the Court should also deny URP’s request for injunctive relief.

85 See id. at 975-77.86 See id. .87 Id. at 995.88 Id. 89 Id. 90 Docket No. 80 at 50.91

See Docket No. 2 at ¶ 81.



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Similarly, with respect to URP’s request that the Court declare that the LG has violated 42

U.S.C. § 1983,92

“[s]ection 1983 itself does not create any substantive rights, but merely provides

relief against those who, acting under color of law, violate federal rights created elsewhere.”93

There can be no “violation” of 42 U.S.C. § 1983 absent a constitutional violation because

“[s]ection 1983 merely provides a cause of action; the substantive rights are created elsewhere.”94

CONCLUSION

The Utah Supreme Court held that “[i]f the Republican Party chooses to comply with the

requirements of the QPP statute as confirmed in this opinion, the relief sought by the Democratic

Party . . . will be moot. If the Republican Party chooses otherwise, perhaps by actually ejecting a

member from the party, there may emerge an actual injury, conveying standing to seek relief in an

appropriate forum.”95

URP has chosen otherwise and this is an appropriate forum. UDP has

suffered and continues to suffer an actual injury to its Constitutional rights because the LG refuses

to recognize URP’s choice.

UDP seeks declaratory and injunctive relief, along with attorneys’ fees and costs, declaring

that URP is an RPP rather than a QPP and enjoining any further efforts of the LG to treat URP as

a QPP. URP has made its choice. The LG must honor this choice and enforce its consequences.

Anything less undermines the integrity of our Election Code and the Constitutional rights that code

is designed to further. If the LG persists in this course of conduct despite URP’s clear statement

that URP will not comply with the Election Code in the face of clear direction from the Utah

Supreme Court, UDP intends to ask the Court for appropriate relief forthwith.

92 See id.93 Reynolds v. Sch. Dist. No. 1, Denver, Colo., 69 F.3d 1523, 1536 (10th Cir. 1995).94 Sanchez v. Hartley, 810 F.3d 750, 759 (10th Cir. 2016).95

Cox, 2016 UT 17, ¶ 11.



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DATED this 14th day of April, 2016.

/s/ David P. Billings

CHARLES A. STORMONT

DAVID P. BILLINGS

STORMONT BILLINGS, PLLC

Attorneys for Intervenor Utah Democratic

Party


Documents

Utah Democrats SB 54 memo