Utah Republican Party, Preliminary Motion - Amended Final

8/10/2019 Utah Republican Party, Preliminary Motion - Amended Final

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Marcus R. Mumford (12737)MUMFORD PC

405 South Main Street, Suite 975

Salt Lake City, Utah 84111Telephone: (801) 428-2000

Email: [email protected]

Attorney for Plaintiff Utah Republican Party

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF UTAH, CENTRAL DIVISION

UTAH REPUBLICAN PARTY,

Plaintiff,

v.

GARY R. HERBERT, et al.

Defendants.

PLAINTIFFS AMENDED MOTION

FOR A PRELIMINARY INJUNCTION1

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

Judge David Nuffer

Pursuant to Rule 65 of the Federal Rules of Civil Procedure, Plaintiff Utah Republican

Party (Party) hereby moves for a preliminary injunction to preserve the status quo and stay the

enforcement and/or implementation of Senate Bill 54 (SB54), attached as Exhibit A, which the

Party is challenging, during the pendency of the underlying action. SB54 is presently scheduled

to go into effect as of January 1, 2015. The parties reached an understanding to avoid the need to

seek a temporary restraining order, as attorneys for the State of Utah have agreed that SB54 does

not require Defendants to take any immediate action affecting the rights of the Party, and the

parties have been negotiating proposals to expedite consideration of the underlying action.

The grounds for the Partys requested relief is that SB54 violates Partys constitutional

1 This amends Plaintiffs Motion for Preliminary Injunction filed at midnight on New Years

Eve [Dkt 12], with corrected exhibits, more detailed statement of facts, and streamlined

argument.

Case 2:14-cv-00876-DN Document 13 Filed 01/05/15 Page 1 of 35


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rights as well as its rights under the Lanham Act in a manner that threatens to harm the Party

irreparably, that the harm to the Party outweighs any harm to Defendants, and because the

requested relief is in the public interest. This motion is based on the following memorandum of

points and authorities, the attached declarations of James Evans (Evans Decl.)2, with exhibits,

the records and pleadings on file with the Court, all matters of which the Court may take judicial

notice, and such other evidence and oral arguments that may be presented at any hearing on this

Motion. Plaintiff requests oral argument.

INTRODUCTION

The First and Fourteenth Amendments to the United States Constitution guarantee to the

Party and its members the rights to associate in a political party, to act and govern themselves as

a political party, to vote as a party, to define who belongs to the Party, to determine for itself the

Partys platform, to allocate its name, title, emblems, and endorsements to those candidates it

believes will best represent the Partys political platform, to determine for itself the candidate

selection process that will produce the nominee who best represents the Partys political

platform, and to not have the State substitute its judgment for that of the Party or be deprived of

these rights without due process of law. This case concerns these core Constitutional freedoms.

While Utah election law may govern the time, place, and manner of elections, it must

accommodate and respect the Partys rights, especially in how the Party determines for itself

how its nominee standard bearers are selected. The Supreme Court has stated:

In no area is the political associations right to exclude more important than in theprocess of selecting its nominee. That process often determines the partys

positions on the most significant public policy issues of the day, and even when

those positions are predetermined it is the nominee who becomes the partys

2The Declaration of James Evans is attached hereto as Exhibit C.



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ambassador to the general electorate in winning it over to the partys views.

Unsurprisingly, our cases vigorously affirm the special place the First

Amendment reserves for, and the special protection it accords, the process bywhich a political party select[s] a standard bearer who best represents the partys

ideologies and preferences. The moment of choosing the partys nominee, we

have said, is the crucial juncture at which the appeal to common principles maybe translated into concerted action, and hence to political power in the

community.

California Democratic Party v. Jones, 530 U.S. 567, 575 (2000) (quoting Tashjian v. Republican

Party of Connecticut, 479 U.S. 208, 216 (1986), andEu v. San Francisco County Democratic

Central Committee, 489 U.S. 214, 224 (1989)).

Earlier this year, SB54 was enacted to impose on the Party a regimen of election law

rules that substitutes the judgment of the State for the judgment of the Party in how it should

select candidates. Those responsible for SB54 have admitted that its intent was not viewpoint

neutralit was enacted to produce Party nominees for elected office who will represent different

priorities and views than the political views of Party and its members, and to make the

Partys winning candidates less responsive and accountableto the Party and its Platform.

SB54 deprives the Party of the rights it should enjoy as a political party, and did enjoy

prior to SB54. Among other things, SB54 takes away the Partys right to certify its candidates

and control its brand, endorsement and message. It further violates the Supreme Courts

unconstitutional choice or the unconstitutional conditions doctrine by seeking to condition

the Partys right to participate in the political process on its agreement to surrender control of the

internal selection processes of its candidates for office. In the underlying action, the Party seeks

an order striking down SB54 as an unconstitutional infringement on the rights of the Party and its



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members. With this motion, the Party seeks a stay of the enforcement of SB54 to preserve the

status quo and avoid irreparable harm to the Party during the pendency of this action.

STATEMENT OF FACTS

The Party attaches and incorporates herein the attached Declaration of James Evans as

factual support of this motion. Additionally, the Party refers the Court to the Utah legislature

floor debates in consideration of SB54, which are available at http://le.utah.gov/jsp/jdisplay/

billaudio.jsp?sess=2014GS&bill=sb0054&Headers=true, and include the following key points

illustrating how SB54 unconstitutionally burdens the rights of the Party:

1. Among other things, members of the Utah legislature responsible for the passage of SB54

repeatedly refer to it as a compromise.3 One might ask, a compromise of what? SB54s chief

sponsor, Utah State Senator Curtis Bramble, explained how an outside group known as CMV or

Count My Vote had approached the dominantparty, referring to the Utah Republican Party,

with its suggested changes to the partys candidate selection process, and [t]hey said if the party

would make a couple changes in convention or in their central committee then the initiative

wouldnt come forward because their agenda was to increase citizen participation. The

negotiations broke down and they brought the initiative forward. This bill is presented as a

compromise based on those negotiations.4 Senator Jim Dabakis explained the purpose of SB54

in terms of helping wealthy Republican donors get around the current system: this is very

much a majority party situation where theres a group of legacy, kind of not poor majority party

people that just dont like the idea of having to deal with delegates . [T]his is pretty much a

3 See the audio file of floor debate in the Senate, day 24 (Day 24), at approx. 53:03 (statement

of Sen. Bramble, the sponsor of SB54); audio file of floor debate in the House, Day 37 (Day 37

House), at approx. 1:45:46 (Rep. Nelson) (This bill I think is a good compromise.).4 Day 24, at approx. 53:03 (statement of Sen. Bramble).



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plan to get around delegates as far as Im concerned.5 In other words, SB54 admittedly seeks to

impose on the Party changes to its candidate selection process which it had previously rejected.

This so-called compromise did not involve the Party but was between the State and CMV on

how best to impose those changes on the Party.6

2. The debates repeatedly state the purpose of SB54 to increase voter participation. But

Senator Bramble explained this in terms of the laws non-viewpoint-neutral purpose of making

the general election more competitive: What impacts citizen participation much greater [than

imposing a direct primary] is competitive races between competing philosophies. [S]tates with

a single party dominance [like Utah] have much lower turnout whether its Republican or

Democrat. So SB54 begins with a premise that there are some affirmative things we can do to

encourage greater participation and provide greater opportunities for citizens to vote.7 Senator

John Valentine explained that the essence is to try to increase a broader participation by voters

and that including the unaffiliated voters to be able to vote in a primary of their choice that is

just critical to me.8The sponsor of SB54 in the Utah House of Representatives explained: I

dont argue that this policy will better than the caucus convention process. I argue that it can be

more inclusive. I further argue that this process does represent an opportunity for a state that is

5 Audio file of floor debate in the Senate, Day 37 (Day 37 Senate), at approx. 30:59 (statement

of Sen. Dabakis).6 See, e.g., Day 37 Senate, at approx. 41:18 (statement of Sen. Weiler, explaining his vote in

favor of SB54) (I dont believe Count My Vote was ever about the will of the people. It was

about the will of a the few wealthy people that wanted to have access to the primary ballotwithout having to meet with ordinary people who got elected as delegates, and I think that this

compromise, while its better than the original Count My Vote petition, it basically shows that it

was never about the will of the people.).7Day 24, at approx. 53:03 (statement of Sen. Bramble);see also id., at approximately 1:01:21

(statement of Sen. Weiler) (referring to the Republicanprimary which in many areas of our

state is the de facto election).8 Day 24, at approx. 1:17:28 (statement of Sen. Valentine).



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dominated by a single party to reach out and grab more people, to encourage more people to be

involved in their process.9 In other words, SB54 was intended to substitute the judgment of

the State for that of the Party in how its candidates should be selected, and also to increase voter

participation by (hopefully) reducing the Partys dominance in general elections.

3. The debates reveal the legislatures intent to force the Party to open up its primaries to

unaffiliated voters.10

Senator Bramble explained how Utah voters are currently unable to

participate in the Partys primary elections unless they registered as a Republican, which was not

difficult and only involved the need to check a box, get the [primary] ballot, and cast a vote,

but to be affiliated with a party, there certain criteria that the party puts on, so that SB54 was

designed to eliminate that check a box requirement and say that because all citizens pay for

the primaries that we shouldnt exclude the largest block of folks [from being able to select the

Partys nominees] simply because they refuse to affiliate with [the] party.11

The Party would

note that is exactly what it is entitled to do: to exclude those who do not affiliate with the Party

9 Day 37 House, at approx. 2:24:26 (statement of Rep. McCay).

10See, e.g., Day 24, at approx. 1:20:25 (statement of Sen. Jones) ([I]ts important that we open

it [referring to the Partys candidate selection process] up to everyone to be able to choose who

their candidates are. Because when we have a one party state whether Utah or other moredemocratic states, then you pretty well decide who your representatives are going to be in the

primary, and continuing to explain why it is important that we have more representative

nominees); Day 37 House, at approx. 1:45;46 (Rep. Nelson) ([I]t broadens access to the

[primary] ballot by inviting the participation of unaffiliated voters.); id., at approx. 1:53:42(statement of Rep. Chavez-Houck) (People should have the opportunity to freely associate with

the party of their choosing, but I would also like us to consider those who in some ways, in some

fashion our current system forces them into forced association to be represented and to articulatetheir concerns as to who is representing them on the ballot. I try to speak for those unaffiliated

voters and I believe this compromiselegislation provides expanded opportunities for our

unaffiliated voters to feel that they, too, can e a party of this discussion.).11

Day 24, at approx. 53:03, and Day 37 Senate, at approx. 25:36 (statements of Sen. Bramble).



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from being able to select its nominees.12

Representative King stated more plainly: I love the

idea that were going to be able to have an open primary. Of course, the Democratic Party has

had an open primary for many, many years. Its the Republican Party thats got a problem here

in the primaries, lets be honest about this. This is a problem for the GOP in the state of Utah,

and Im not really interested in carrying water for the GOP, but viewed from a bigger

perspective, I think this bill in terms of opening access to the GOP primary for the citizens of the

state of Utah to unaffiliated voters is a good thing.13

4.

The debates acknowledge that SB54 was designed to impose its preferred candidate

selection process on the Party in a way that looks like a voluntar[y] choice.14

Senator Lyle

Hillyard spoke in favor of SB54, explaining that we, as a legislature, cannot mandate to a party

what its election is going to be, which is why its sponsor answer[ed] that problem by simply

say[ing], Were going to have an open primary. And if you as a party dont want to get caught

in this open primary, theres basically four things you have to do, referring to the processes that

would apply to qualified political parties under SB54, [a]nd one of them is that the

unaffiliated voters are given access to the vote in your primary. but, again, the way Senator

Bramble has drafted this Bill is the fact that they have to voluntarily agree to do it as the

condition.15

Legislators felt they were justified in forcing this choice on the Party because of

how the State gives to political parties the privilege of having its name identified on a ballot that

is a public ballot run by the government, which provides the compelling state interests [and]

12 See Jones, 530 U.S. at 575 (In no area is the political associations right to exclude more

important than in the process of selecting its nominee.).13

Day 37 House, at approx. 1:56:28 (statement of Rep. King).14

See Day 24, at approx. 1:02:02 (statement of Sen. Hillyard).15

Id.



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the authorization for this body to regulate that entity.16

5. Those responsible for SB54 admitted at the time it was passed that it would need changes

before it went into effect, explaining that the purpose was in how it would put the State in charge

of implementing those future changes. The sponsor of SB54 in the House of Representatives

admitted that the bill had problems, including the fact that someone could get to the November

ballot without having won a majority of their partys votes in a primary, but that passing the bill

would displace the Party and put the State in charge of addressing those issues: in my opinion,

that is the key merit of this bill. The decisions are made where the people have elected people to

make their decisions at a representative government.17

The Senate sponsor admitted that the

scenario created by SB54 where a candidate could have far less than a majority vote and still

advance as the partys nominee as something that needs to be fixed in a future session.18

16 Day 37 House, at approx. 1:40:01 (Rep. Powell); Day 37 Senate, at approx. 23:55 (statement

of Sen. Bramble) ([I]f a party chooses to become a qualified political party [among other

things] they would have to allow unaffiliated voters to participate in the primary process). In

contrast, some voted against SB54 because of how this purported choice would caus[e] the

death of the [Partys preferred] caucus and convention system. Day 37 House, at approx.2:06:41 (statement of Rep. Standard); id., at approx. 2:08:31 (statement of Rep. Greene)

(addressing SB54s false argument: [W]ere confusing [right to the ballot] with the right to a

nomination of the party That is the right that belongs to the people who associate in that party,and I dont think as a legislature we have the authority to impose upon them what we think might

be the preference of society at large.).17

Day 37 House, at approx. 2:02:43 (statement of Rep. McCay).18

Day 37 Senate, at approx. 27:48 (statement of Sen. Bramble).



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ARGUMENT

I. THE APPLICABLE STANDARD TO OBTAIN A PRELIMINARY INJUNCTION.

To obtain a preliminary injunction, the movant must show (1) a likelihood of success on

the merits; (2) a likely threat of irreparable harm to the movant; (3) the harm alleged by the

movant outweighs any harm to the non-moving party; and (4) an injunction is in the public

interest. Hobby Lobby Stores, Inc. v. Sebelius, 723 F.3d 1114, 1128 (10th Cir. 2013). Where

the moving party can show that the second, third, and fourth factors tip strongly in [its] favor,

the Tenth Circuit holds that it may satisfy the first factor by showing that questions going to the

merits are so serious, substantial, difficult, and doubtful as to make the issue ripe for litigation

and deserving of more deliberate investigation.Id.(quoting Okla. ex rel. Okla. Tax Comm'n v.

Int'l Registration Plan, Inc., 455 F.3d 1107, 1113 (10th Cir. 2006));see alsoAwad v. Ziriax, 670

F.3d 1111, 1125 (10th Cir. 2012);Prairie Band of Potawatomi Indians v. Pierce, 253 F.3d 1234,

1246-47 (10th Cir. 2001) (If the party seeking the preliminary injunction can establish the last

three factors [of the test for a preliminary injunction], then the first factor becomes less strict

i.e., instead of showing a substantial likelihood of success, the party need only prove that there

are questions going to the merits so serious, substantial, difficult, and doubtful as to make the

issue ripe for litigation and deserving of more deliberate investigation. (quotingFederal Lands

Legal Consortium v. United States, 195 F.3d 1190, 1194 (10th Cir. 1999))).

[I]n First Amendment cases, the likelihood of success on the merits will often bethe determinative factor.ACLU of Illinois v. Alvarez, 679 F.3d 583, 589 (7th Cir.

2012), cert. denied,U.S., 133 S. Ct. 651 (2012). That is because:

the loss of First Amendment freedoms, for even minimal periods of time,

unquestionably constitutes irreparable injury,Heideman v. South Salt Lake

City, 348 F.3d 1182, 1190 (10th Cir. 2003) (internal quotation marks omitted);



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when [a] law ... is likely unconstitutional, the[ ] interests [of those the

government represents, such as voters] do not outweigh [a plaintiffs interest]

in having [its] constitutional rights protected,Awad, 670 F.3d at 1131-32;

and

it is always in the public interest to prevent the violation of a partys

constitutional rights, id. at 1132.

Hobby Lobby, 723 F.3d at 1145.

The purpose of a preliminary injunction is to preserve the relative positions of

the parties until a trial on the merits can be held. [A]preliminary injunction is

customarily granted on the basis of procedures that are less formal and evidencethat is less complete than in a trial on the merits. A party thus is not required to

prove his case in full at a preliminary-injunction hearing.

Univ. of Texas v. Camenisch, 451 U.S. 390, 395 (1981)

Preliminary injunctions are regularly granted in cases raising constitutional issues. See,

e.g., Republican Party of New Mexico v. King, 741 F.3d 1089 (10th Cir. 2013) (affirming

preliminary injunction of campaign finance law based on First Amendment grounds);Hobby

Lobby, 723 F.3d at 1128 (reversing the denial of a motion for preliminary injunction of

Affordable Care Act regulations mandating contraceptive coverage based on First Amendment

grounds); Campbell v. Bysiewicz, 242 F. Supp. 2d 164 (D. Conn. 2003) (preliminary injunction

and summary judgment granted to candidates challenging ballot-limiting statutes). Likewise,

with respect to the issues raised in the underlying action regarding trademark infringement,

courts have consistently held that a preliminary injunction should usually issuewhen the use of

a mark creates a likelihood of confusion in the consumers minds as to the ownership or

sponsorship of a product. Church of Scientology Intern. v. Elmira Mission of the Church of

Scientology, 794 F.2d 38, 41 (2d Cir. 1986) (emphasis added);see also Petro Franchise Systems,

LLC v. All American Properties, Inc., 607 F. Supp. 2d 781 (W.D. Tex. 2009) ([P]reliminary



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State Bd. of Elections v. Lopez Torres, 552 U.S. 196, 203 (2008) (recognizing the right that the

First Amendment confers on political parties to structure their internal party processes and to

select the candidate of the partys choosing). There is simply no substitute for a partys

selecting its own candidates. Jones, 530 U.S.at 581. Here, the Party has demonstrated how the

enactment and implementation of SB54 will violate the very constitutional rights recognized by

Jonesand other authorities. See Compl. 96-104; Evans Decl. 51-59.19

The recitation of

legislative history helps show that was the intent of the law: to impose the States preferred

candidate selection process on the Party, to force the Party to open its primary, to encourage

broader voter participation by forcing a candidate selection process on the Party that will make

general elections more competitive. Just as inHobby LobbyandAwad, Party has demonstrated

irreparable harm. Hobby Lobby, 723 F.3d at 1146;Awad, 670 F.3d at 1131.

With respect to Partys trademark infringement claim, many courts have stated that

where the plaintiff makes a strong showing of likely confusion, irreparable injury follows as a

matter of course. Opticians Assn of America v. Independent Opticians of America, 920 F.2d

187, 196 (3d Cir. 1990) (citing opinions from Second, Seventh, Eighth and Ninth Circuits to

reverse denial of preliminary injunction). The Tenth Circuit has subscribed to a similar rule

suggesting that [i]rreparable injury is frequently presumed where a trademark is wrongfully

appropriated by another. SCFC ILC, Inc. v. Visa USA, Inc., 936 F.2d 1096, 1100-01 (10th Cir.

1991) (citingProcessed Plastic Co. v. Warner Comms, 675 F.2d 852, 858 (7th Cir. 1982)). The

irreparable injury here is further apparent given the nature of the trademark issue. In Washington

State Grange, Justice Scalia, joined by Justice Kennedy, made the following observations with

19 Thalheimer, 645 F.3d at 1116 (verified complaint may be treated as an affidavit, and, as

such, it is evidence that may support injunctive relief.).



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respect to Party trademarks and symbols:

Parties seek principally to promote the election of candidates who will implement

[their] views. That is achieved in large part by marking candidates with the party'sseal of approval. Parties devote substantial resources to making their names

trusted symbols of certain approaches to governance. They then encourage voters

to cast their votes for the candidates that carry the party name. Parties' efforts to

support candidates by marking them with the party trademark, so to speak, havebeen successful enough to make the party name, in the words of one

commentator, the most important resource that the party possesses. And all

evidence suggests party labels are indeed a central consideration for most voters.

Washington State Grange v. Washington State Republican Party, 552 U.S. 442, 463-64 (2008)

(Scalia, J., dissenting) (citations omitted). Not only does SB54 allow the State to misappropriate

from the Party its right to certify one of its most important resource[s], but it further creates

confusion in how the Partys endorsement is presented on the election ballot:

The ballot comes into play at the most crucial state in the electoral process the

instant before the vote is cast. It is the only document that all voters areguaranteed to see, and it is the last thing the voter sees before he makes his

choice. Thus, we have held that a State cannot elevate a particular issue to

prominence by making it the only issue for which the ballot sets forth the

candidates positions Forced association with the party on the general electionballot [is] fatal

[T]hrusting an unwelcome, self-proclaimed association upon the party on theelection ballot itself is amply destructive of the partys associational rights. An

individuals endorsement of a party shapes the voters view of what the party

stands for, no less than the partys endorsement of an individual shapes the votersview of what the individual stands for.

Id. at 465-66 (citations omitted). Here, Party has expended significant resources to makes its

name and mark a trusted symbol. Evans Decl. at 12. SB54 burdens the Partys rights by the

States unwelcome, self-proclaimed association of candidates to the Party. See Evans Decl.

51-52, 55-56, 59. In other words, SB54 hijack[s] the Partys goodwill. Washington State

Grange, 552 U.S. at 466. The Party has thus shown irreparable injury on its trademark claim.



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B. The Injury The Party Will Suffer Outweighs Any Harm To Defendants.

The Party must show that its threatened injury outweighs any injury to [Defendants]

caused by granting the injunction. Awad, 670 F.3d at 1131. With respect to the Partys

constitutional claims, the State will likely argue that the balance weighs in [its] favor because

[Utah] voters have a strong interest in having their politically expressed will enacted, a will

manifested by a large margin at the polls. Id. But, asAwadmade clear, when the law that

voters wish to enact is likely unconstitutional, their interests do not outweigh Mr. Awads in

having his constitutional rights protected. Id. Likewise, even if Defendants rely on some

disruption in Utahs election laws, the result is no different.

Furthermore, SB54, like the amendment inAwad, does not appear to address any

immediate problem. Id. at 1132. Indeed, the purpose of SB54 is to decrease the Partys

influence and produce elected officials who are less beholden to the Party. Evans Decl. 43.

Its sponsors admitted that the law needs to be fixed before it is implemented. See supra SOF

5 & nn.15-16. AsAwad found, [d]elayed implementation of a measure that does not appear to

address any immediate problem will generally not cause material harm, even if the measure were

eventually found to be constitutional and enforceable. Id. Just as inHobby Lobby, there is

[no] question about the balance of equities. Hobby Lobby, 723 F.3d at 1146. The Party has an

interest in protecting and preserving its constitutional rights, avoiding unnecessary time and

expense in trying to comply with SB54, and avoiding confusion in the mean time. This interest

outweighs any harm of which Defendants can complain, including delayed implementation of

the politically expressed will of voters. Awad, 670 F.3d at 1131-32;see also Otero Sav. and

Loan Assn v. Federal Reserve Bank of Kansas City, Mo., 665 F.2d 275, 278 (10th Cir. 1981)



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(affirming preliminary injunction where the potential injury to the Reserve Bank from the

granting of an injunction was nonexistent when measured against the resulting harm which

would be suffered by plaintiffs if it were denied).

C. The Injunction Is Not Adverse to the Public Interest.

[I]t is always in the public interest to prevent the violation of a partys constitutional

rights. Hobby Lobby, 723 F.3d at 1147 (quotingAwad, 670 F.3d at 1132). While the public

has an interest in the will of the voters being carried out the public has a more profound and

long-term interest in upholding an individuals constitutional rights. Awad, 670 F.3d at 1132.

InAwad, where the movant sought to enjoin enforcement of a voter approved amendment, the

preliminary injunction was not adverse to the public interest, notwithstanding it would

potentially interfere[] with [Utahns] fundamental right to vote, prevent[] enactment of the

voters will, and discourage[] the voters from participating in the election process.Id. Under no

set of circumstances is Partys requested preliminary injunction adverse to the public interest.

Likewise, regarding the claim for trademark infringement, [public interest] is most often

a synonym for the right of the public not to be deceived or confused. Opticians Assn, 920 F.2d

at 197 (citing 2J. McCarthy, Trademarks and Unfair Competition, 30:21 (2d ed. 1984));see

also Tsunami Softgoods, Inc. v. Tsunami International, Inc. , 2001 WL 670926, *6 (D. Utah Jan.

19, 2001) (citing Opticians Assn). Allowing Defendants to substitute the States preferred

process for that of the Party and misappropriate the Partys mark and emblem surely undermines

the public interest. Imposing on the Party a candidate who may not be a member, who has not

stated his or her position regarding Partys platform, and who may not have been selected by a

majority of Republicans creates confusion. SeeCompl. 70. Just as in Tsunami, the public



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interest is best served by entry of an injunction. Tsunami, 2001 WL 670926, at *6.

D. The Party Can Demonstrate A Likelihood Of Success On The Merits Or That

There Are Serious Questions Going To The Merits Warranting Litigation.

The second, third, and fourth factors weigh in the Partys favor as it concerns the

constitutional and trademark issues. Accordingly, the Party is not required to demonstrate a

substantial likelihood of success on the merits. Rather, it [need] only to prove that there [are]

questions going tothe merits so serious, substantial, difficult, and doubtful as to make the

issue ripe for litigation and deserving of more deliberative investigation. Prairie Band, 253

F.3d at 1253. As inHobby Lobby, the Party can meet either test for its constitutional and

trademark claims. 723 F.3d at 1128.

1. The Partys Constitutional Claims.

To assess the constitutionality of a state election law, we first examine whether it

burdens rights protected by the First and Fourteenth Amendments. Eu, 489 U.S. at 222. If the

challenged law burdens the rights of political parties and their members, it can survive

constitutional scrutiny only if the State shows that it advances a compelling state interest, and is

narrowly tailored to serve that interest. Id. (citations omitted). Here, the Party has

demonstrated how its First Amendment rights will be infringed by SB54. See, e.g., Evans Decl.

51-59. When the analysis shifts, Defendants cannot meet their special First Amendment

burden to justify SB54s constitutional infringements. Gordon,721 F.3d at 644.

The Supreme Court has stated that [a] political party has a First Amendment Right to

limit its membership as it wishes, and to choose a candidate-selection process that will in its

view produce the nominee who best represents its political platform.Lopez Torres, 552 U.S. at

202. [Supreme Court] cases vigorously affirm the special place the First Amendment reserves



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for, and the special protection it accords, the process by which a political party selects a

standard bearer who best represents the partys ideologies and preferences.Jones, 530 U.S. at

575. Stated simply, a State cannot substitute its judgment for that of the party as to the

desirability of a particular internal party structure. Eu,, 489 U.S. at 232-33. A partys First and

Fourteenth Amendment rights are burdened and suffocate[d] when the law [d]epriv[es] a

political party of the power to endorse candidates, to identify the people who constitute the

association, or to selecta standard bearer who best represents the partys ideologies and

preferences. Id. at 224. In no area is the political associations right to exclude more

important than in the process of selecting its nominee. Jones, 530 U.S. at 575. And [t]he

freedom to associate for the common advancement of political beliefs, necessarily presupposes

the freedom to identify the people who constitute the association, and to limit the association to

those people only. Democratic Party of U.S. v. Wisconsin ex rel. La Follette, 450 U.S. 107, 122

(1981). In other words, a corollary of the right to associate is the right not to associate. Jones,

530 U.S. at 574. Laws that seek to substitute [the States] own judgment for that of the Party,

Tashjian v. Republican Party of Conn., 479 U.S. 208, 216 (1986) (quotingLa Follette, 450 U.S.

at 122-23), and either regulate a political partys internal decisionmaking process

compel[ling] it to associate with voters of any political persuasion, or regulate its internal

processes, its authority to exclude unwanted members, or its capacity to communicate with the

public should be struck down. Clingman v. Beaver, 544 U.S. 581, 590 (2005). In Clingman,

the Supreme Court distinguished several Supreme Court cases and upheld Oklahomas statute

restricting a partys primary to its registered members or, if the party wished, to independents.

Id. Voters challenged the law because they wish[ed] to remain registered with the Republican,



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Democratic, or Reform parties, and yet assist in selecting the Libertarian Partys candidates

for the general election. Id. at 588. The Supreme Court applied its decision in Timmons v. Twin

Cities Area New Party, 520 U.S. 351, 353-54 (1997), which upheld a Minnesota law prohibiting

a minor party from adopting and putting forward as its own the same candidate as a major party,

on grounds that the prohibition did not regulate[] [the partys] internal decisionmaking process,

nor compel[] it to associate with voters of any political persuasion. Clingman, 544 U.S. at 589-

90. The Oklahoma law similarly did not regulate the [partys] internal processes, its authority

to exclude unwanted members, or its capacity to communicate with the public. Id. In contrast,

the Clingmancourt distinguished Tashjianon grounds that the Connecticut law it struck down in

that case sought to impose on the party a restriction on whether independent voters could vote in

primaries that contradicted the partys internal rules allowing it. Id. at 592. The Oklahoma law

did not attempt to compel a party to either allow or disallow the participation of independent

voters, but rather left those issues to the respective parties. See id.

SB54 burdens and threatens to burden all of the aforementioned rights of a political

party. See, e.g., Evans Decl. 51-59. Several cases illustrate this point. InLa Follette, the

Supreme Court struck down as unconstitutional a law that, like SB54, burdened a political

partys right to exclude. The Court stated:

Here, the members of the National Party, speaking through their rules, chose todefine their associational rights by limiting those who could participate in the

processes leading to the selection of delegates to their National Convention. Onseveral occasions this Court has recognized that the inclusion of persons

unaffiliated with a political party may seriously distort its collective decisionsthus impairing the partys essential functions and that political parties may

protect themselves from intrusion by those with adverse political principles.

La Follette, 450 U.S. at 122. Like the National Party inLa Follette, the Party here has through



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its defined who can and cannot participate in its candidate selection process. Evans Decl. 20,

25, 29. The Party has chosen to exclude unaffiliated voters or voters registered with other parties

from its processes. Evans Decl. 25. SB54 was intentionally designed to force the Party to

change that and force the Party to open any primary to unaffiliated voters. Supra SOF 2-3;

Evans Decl. 57(b). InLa Follette, the Court recognized the importance of inhibit[ing] party

raiding, whereby voters in sympathy with one party designate themselves as voters of another

party so as to influence or determine the results of the other partys primary. La Follette, 450

U.S. at 122. But party raiding is exactly what SB54 not only permits but intends.

InJones, 530 U.S. at 577, the law at issue force[d] political parties to associate with -to

have their nominees, and hence their positions, determined by-those who, at best, have refused to

affiliate with the party, and, at worst, have expressly affiliated with a rival. As the Court noted,

this was like the unconstitutional law inLa Follettethat allow[ed] nonparty members to

participate in the selection of the partys nominee [in] conflict[] with the Democratic Partys

rules. Id. at 576. Significantly, the Court observed: It is arguable that, under the Courts

reasoning combined with Tashjian, the only nominating options open for the States to choose

without party consent are: (1) not to have primary elections, or (2) to have what the Court calls a

nonpartisan primary.Jones, 530 U.S. at 577 n.8. SB54 does not fall into either category.

AsJones explained, a nonpartisan primary is not actually a primary in the common,

partisan sense of that term at all. Rather, it is a general election with a runoff. Id. SB54 is not

the type of nonpartisan primary described byJones. This point is illustrated by the Supreme

Courts consideration of a nonpartisan primary system adopted in Washington, directly in

response toJones. See Washington State Grange v. Washington State Republican Party, 552



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U.S. 442, 446-47 (2008) (After our decision inJones, the Court of Appeals for the Ninth Circuit

struck down Washingtons primary The Washington State Grange promptly proposed I-872 as

a replacement.).

In Grange, the political party claimed that, like the law inJones, the new Washington law

allows primary voters who are unaffiliated with a party to choose the partys nominee.

Grange, 552 U.S. at 452. But, as the Court explained, [t]he flaw in this argument is that, unlike

the California primary, the I-872 primary does not, by its terms, choose the parties nominees.

Id. at 453. [T]he election regulations specifically provide that the primary does not serve to

determine the nominees of a political party but serves to winnow the number of candidates to a

final list of two for the general election. Id. Finally, [w]hether the parties nominate their own

candidates outside the state-run primary is simply irrelevant. Id. Unlike the Grangelaw, under

SB54 the State does choose the partys nominee, and in fact strips the Party of that right. Evans

Decl. 51(b). In contrast to Grange, it is not irrelevant if parties nominate their own candidates

outside the state-run primary. Id. Indeed, if the party nominates a candidate outside the system

mandated by SB54, the party loses its right to endorse candidates on the general election ballot.

Evans Decl. 52(b). As Justice Scalia made clear: Parties efforts to support candidates by

marking them with the party trademark, so to speak, have been successful enough to make the

party name, in the words of one commentator, the most important resource that the party

possesses. Grange, 552 U.S. at 464 (Scalia, J., dissenting). Like the blanket primary inJones,

SB54 forces petitioners to adulterate their candidate-selection processa political partys basic

functionby opening it up to persons wholly unaffiliated with the party, who may have different

views from the party. Jones, 530 U.S. at 568;see supraSOF 2-4. And like the law inJones,



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SB54 has the likely outcomeindeed, it is [SB54s] intended outcomeof changing the

parties message. Id.;see supra SOF 1-5; Evans Decl. 43. SB54 is not the type of

nominating option[] open for the State to choose without party consent. Id. at 577 n.8.

Accordingly, SB54 is unconstitutional unless it is narrowly tailored to serve a compelling state

interest. Id. at 568. FollowingJones, several courts have struck down laws similar to SB54.

InIdaho Republican Party v. Ysura, 765 F. Supp. 2d 1266, 1268 (D. Idaho 2011), the

court found that [b]ecause theopen primary permits substantial numbers of independent voters,

as well as voters associated with other political parties, to cross over and participate in the

Republican Partys selection of its nominees, the Court concludes that, by mandating such a

nomination process, the State violates the Partys constitutionally guaranteed right to freedom of

association. InIdaho Republican Party, the court relied on the states own expert testimony,

which established the following:

Inside the Idaho open primary system, especially in a one-party state like Idaho

where the Republican Party primaries are in most cases the only game in town,voters do likely cross over; they have to in order to have any meaningful influence

in the elections and express their sincere preferences with regard to their own

representation

Id. at 1273. Expert testimony further established that extant empirical literature on crossover

voting shows that an effective estimate of the average of crossover voting in the literature comes

in at around 10%, under the strict definition of crossover votingof one sides partisan

identifiers voting in another party. Id. at 1274. The experts also testified that if they included

independent voters, there is more likely 20-30% crossover voting. Id. According toIdaho

Republican Party, even if we use the most conservative estimate of 10% crossover voting, with

only a small number of partisan raiders, the effects can be devastating to a party. Id. at 1275.



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Thus, the court could not find any meaningful distinction between the open primary in Idaho

and the blanket primary found unconstitutional inJones. Like the blanket primary system

addressed inJones, the current open primary system in Idaho forces the Idaho Republican Party

to open its candidate-selection process to persons wholly unaffiliated with the Party. Id. This

case is no different. Like Idaho, Utah is a one-party state where the Republican Party

primaries [will] in most cases [be] the only game in town. Id. at 1273;see Evans Decl. 13.

Further, SB54 does not include any disaffiliation requirements and it mandates that unaffiliated

voters can cast votes in Partys primary elections. Evans Decl. 57(b). Just as inIdaho

Republican Party, crossover voting is likely, and whether the percentage of crossover voting is

10%, or even smaller, just as inIdaho Republican PartyorJones, such forced association has

the likely outcome of changing [Partys] message. Id. at 1275 (quotingJones, 530 U.S. at

581-82). Indeed, that is the stated purpose of County My Vote and SB54. Evans Decl. 42-43.

With respect to Partys right to exclude, just as inIdaho Republican Party, there is no

meaningful distinction between the open primary [under SB54] and blanket primary found

unconstitutional inJones. Id.

InArizona Libertarian Party v. Brewer, Case No. 4:02-cv-00144-RCC (D. Ariz. Sept. 27,

2000), the district court noted that [a] political partys right to choose its own nominees is a core

associational activity and the mandatory inclusion of unaffiliated persons with the political party

may seriously distort the partys decision. (Order at 7, attached as Exhibit B.) As the court

explained, Arizonas primary system compels the ALP to associate with registered

independents and those registered with other parties who do not have a candidate in the general

election. (Order at 5-6.) Because this create[d] the danger that the Libertarian candidate will



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be selected by voters who are not Libertarians, the district courtfound that [t]he burden

imposed on the ALP by Arizonas primary system is severe. (Id. at 5.) Stated differently,

[d]ue to the potential distortion forced on the Libertarian party by the mandatory inclusion of

those not affiliated with the party, Arizonas primary system imposes a severe burden on the

ALP. (Id. at 7.) The district court also rejected attempts to distinguish Arizonas law from the

one inJones, or to analogize Arizonas primary system to those at issue in Clingman v. Beaver,

544 U.S. 581 (2005). As the court explained, [t]he burden imposed in this case is more similar

to the burden imposed inJonesthan the burden imposed in Clingman. (Order at 6-7.) This is

because, likeJones, and unlike Clingman, the burden involved forced association in the primary

election. (Id.) In other words, [a]s inJones, Arizonas primary system has created a clear and

present danger of a partys candidate being chosen by people other than party members. SB54

permits unaffiliated voters to vote in Partys primary elections. This is the same burden found in

Arizona Libertarian PartyandJones, not Clingman. Indeed, the ClingmanCourt specifically

distinguished Oklahomas semiclosed primary system as unlike the law inJoneswhich

would compelassociation with unwanted members or voters. Clingman, 544 U.S. at 587.

In addition to theJonescase,Arizona Libertarian Partyalso explained how Arizonas

primary system is similar to the Virginia primary system found unconstitutional inMiller v.

Brown, 465 F. Supp. 2d 584 (E.D. Va. 2006). (Order at 7-8.) As the Sixth Circuit stated, the

Board concedes that if a political party is compelled to select its candidate by means of a

state-run primary, the State may not force the party to include voters in that primary.

Miller v. Brown, 503 F.3d 360, 368 (4th Cir. 2007) (emphasis added). But, like SB54, the

Virginia law did just that, it forced the Committee to use a nomination process that prevented it



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from excluding voters with whom it did not wish to associate. Id. at 363. Thus, relying on

language from our prior opinion in this case, the court determined that the type of forced

association caused by mandatory open primary causes significant injury to the First Amendment

rights of a political party. Id.

The only reason Virginias law was not unconstitutional on its face was because

Virginia law permitted other methods of nomination under which a political party could restrict

participation in its nominating process to voters who share its political beliefs. Id. But that is

not the case with SB54. While Defendants may argue that Party can disregard SB54 and still

place a nominee on the general election ballot, the Court should not be persuaded. As explained

above, any disregard for the SB54 system comes at great cost to Party. See Evans Decl. 52(b).

SB54 would severely penalize Party by either forcing it to accept a process that would not

guarantee a candidate who is a party member or elected by a majority of the party or by

prohibiting it from putting its mark or endorsement on the ballot. Id. But being able to support

candidates by marking them with the party trademark[is] the most important resource that the

party possesses. Grange, 552 U.S. at 464 (Scalia, J., dissenting);see also Eu, 489 U.S. at 224

([b]arring political parties from endorsing and opposing candidates not only burdens their

freedom of speech but also infringes upon their freedom of association and [d]epriving a

political party of the power to endorse suffocates this right.) Indeed, all evidence suggests

party labels are...a central consideration for most voters. Id. Contrary to what Defendants

might claim, SB54 does not allow other methods of nomination, SB54 impermissibly places

Party between a rock and a hard place. On the one hand, Party must allow the State to

substitute its judgment for that of the party, something the State cannot do. See Eu, 489 U.S.



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at 233. On the other hand, Party must forfeit its right to have its mark and endorsement, its

most important resource, on the general election ballot. See Grange, 552 U.S. at 464 (Scalia,

J., dissenting); Evans Decl. 52(b). But even if SB54 provides other nominating options,

Arizona Libertarian Partydictates that the burden imposed by SB54 is still severe, just as it was

inMillereven though the primary system in Virginia was not exclusive. Arizona Libertarian

Party, Order at 7-8.

Finally, in Green Party of Tennessee v. Hargett, 882 F. Supp. 2d 959 (M.D. Tenn. 2012)

rev'd on other grounds and remanded,700 F.3d 816 (6th Cir. 2012), the court invalidated

Tennessees requirement that partys choose nominees by way of primary elections. There, the

state argued that Tennessees system was akin to the semi-closed primary thatrenders

Tennessees system distinguishable fromJonesand more like the Supreme Courts decisions in

Clingman, and Tashjian. Id. at 1004. But, unlike the Tennessee statute at issue, as well as

SB54, the Clingmanand Tashjiancases involved primaries where voters also had to act by

registering themselves in a particular party and where voters had to register as Libertarians or

Independents to participate in LPOs primary. Id. In other words, like the Tennessee law, SB54

does not assure that the nonparty members are registered independents as in Clingman, and

Tashjian. Id. More significantly, Clingman and Tashjian involved acts by political

parties requesting the State to open their closed primaries to allow independent voters to

participate in their primaries. Id. In other words, unlike in Clingmanand Tashjian, and just

like in Green Party, here the State is initiating this action by state law imposing these

requirements upon [Party]. Id. This is important. TheJonesCourt recognized that under

Tashjian, a party may require a State to open up a closed primary. Jones, 530 U.S. at 577 n.8.



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But, the Court stated that, arguably, there are only two potential nominating options open for

the States to choose without party consent. Id. As previously explained, SB54 does not fall

into either of these permissible nominating options. The Green Partycourt ultimately held

that [b]ased upon Timmonsand the holding inJones, Tennessee cannot force Plaintiffs to

select their nominees by primary election and to compel Plaintiffs to do so violates Plaintiffs

First Amendment right of association, including the right to select the nominees or

spokespersons for their parties. Green Party, 882 F. Supp. 2d at 1005. Just as in Green Party,

and as counseled by the Supreme Court inJones, the State cannot impose the nominating

option contemplated by SB54 without Partys consent. Jones, 530 U.S. at 577 n.8. To do so

imposes a severe burden on the Partys rights.

To summarize, SB54 is substantially similar to the election laws that were invalidated by

La Follette,Jones,Idaho Republican Party,Arizona Libertarian Party,Miller, and Green Party.

Like SB54, the laws in all of those cases impermissibly forced political parties to adulterate

their candidate-selection processthe basic function of a political party, by opening it up to

persons wholly unaffiliated with the party. Jones, 530 U.S. at 581. Like SB54, the burden

imposed by the laws in all of those cases is both severeand unnecessary. Id. at 586. And like

the laws in all of those cases, SB54 is unconstitutional unless it is narrowly tailored to serve a

compelling state interest. Id. at 582.

In this, the State may respond to say that it has the authority to regulate elections and

SB54 gives the Party a choice in that respect. See SOF 4-5. But the State cannot condition

the Partys right to participate in the political process on its agreement to surrender control of the

internal selection processes of its candidates for office. This is known as the unconstitutional



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choice or unconstitutional conditions doctrine. As the Supreme Court declared inPerry v.

Sindermann, 408 U.S. 593 (1972):

For at least a quarter-century, this Court has made clear that, even though a person

has no right to a valuable governmental benefit, and even though the

government may deny him the benefit for any number of reasons, there are some

reasons upon which the government may not rely. It may not deny a benefit to aperson on a basis that infringes his constitutionally protected interest, especially

his interest in freedom of speech. For if the government could deny a benefit to a

person because of his constitutionally protected speech or associations, his

exercise of those freedoms would in effect be penalized and inhibited. This wouldallow the government to produce a result which [it] could not command

directly. Speiser v. Randall, 357 U.S. 513, 526. Such interference with

constitutional rights is impermissible.

More recently, the Supreme Court noted inBoard of County Commrs v Umbehr, 518

U.S. 668, 674 (1996):

Recognizing that constitutional violations may arise from the deterrent, orchilling, effect of governmental [efforts] that fall short of a direct prohibition

against the exercise of First Amendment rights,Laird v. Tatum, 408 U.S 1, 11

(1972), our modern unconstitutional conditions doctrine holds that thegovernment may not deny a benefit to a person on a basis that infringes his

constitutionally protected freedom of speech even if he has no entitlement tothat benefit,Perry v. Sindermann, 408 U.S 593, 597 (1972).

Id. The Tenth Circuit has consistently applied this unconstitutional conditions doctrine to

prospectively enjoin statutes or regulations that condition the receipt of a government benefit

upon the surrender of rights of free speech or association. See, e.g., Planned Parenthood of

Kansas and Mid-Missouri v. Moser, 747 F.3d 814, 838-839, (10th Cir. 2014); Utah Licensed

Beverage Association v. Leavitt, 256 F.3d 1061, 1074, 1076 (10th Cir. 2001) (To permit Utah to

abridge the commercial speech rights of its liquor licensees as a condition of their licenses would

constitute just such a qualification of the First Amendment.). Thus the State cannotavoid the

impact of SB54 on the Partys rights by arguing that it somehow gives the Party a choice in



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how it complies with the restrictions and burdens SB54 places on the Partys rights.

Defendants have not yet fully articulated a narrowly tailored, compelling state interest,

nor is is likely that they can meet that burden. See Gordon, 721 F.3d at 644 (in First Amendment

context, state has special First Amendment burden). Indeed,Jonesrejected seven state

interests and also observe[d] that even if all these state interests were compelling ones,

Proposition 198 is not a narrowly tailored means of furthering them. Jones, 530 U.S. at 582,

585. As an example of a narrowly tailored means, the Court proffered the nonpartisan

primary, which SB54 is not. See id. at 585-86 (explaining nonpartisan blanket primary in

which, unlike the law inJones, or SB54 here, [p]rimary voters are not choosing a partys

nominee). Any attempt by Defendants to offer a compelling state interest is further likely to fail

because, as the Supreme Court held inLa Follette, whatever the strength of the state interests

supporting the open primary itself, they could not justify this substantial intrusion into the

associational freedoms of members of the National Party. Id. at 576 (quotingLa Follette, 450

U.S. at 126). In light of the foregoing, the Party has met its burden to obtain a preliminary

injunction staying enforcement of SB54 during the pendency of this matter.

2. The Partys Trademark Infringement Claim.

Under 15 U.S.C. 1125(a), Party must make the following showings: (1) that the mark

is protectable; (2) that Defendants used the trademark in connection with any goods or

services; and (3) that Defendants use is likely to cause confusion, or to cause mistake, or to

deceive as to the affiliation, connection, or association of such person with another person, or as

to the origin, sponsorship, or approval of his or her goods, services, or commercial activities by

another person. Utah Lighthouse Ministry v. Foundation of Apologetic Information and



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Research, 527 F.3d 1045, 1050 (10th Cir. 2009). These elements are satisfied here.

a. Partys Mark Is Protectable.

An identifying mark is distinctive and capable of being protected if it either(1) is

inherently distinctive or(2) has acquired distinctiveness through secondary meaning. Two

Pesos, Inc. v. Taco Cabana, Inc., 505 U.S. 763, 769 (1992). Marks are often classified in

categories of generally increasing distinctivenessthey may be (1) generic; (2) descriptive; (3)

suggestive; (4) arbitrary; or (5) fanciful. Id. at 768. The latter three categories of marks,

because of their intrinsic nature serves to identify a particular source of a product, are deemed

inherently distinctive and are entitled to protection. Id. In contrast, generic marksthose that

refer to the genus of which the particular product is a species,are not registerable as

trademarks. Id. Here, the Partys mark fits into the latter three categories and is protectable.

Justice Scalias dissent in the Washington State Grangecase is instructive. As Justice

Scalia explained, [p]arties seek principally to promote the election of candidates who will

implement [their] views. Washington State Grange, 552 U.S. at 463 (citations omitted). That

is achieved in large part by marking candidates with the party's seal of approval and [p]arties

devote substantial resources to making their names trusted symbols of certain approaches to

governance. Id. at 464 (citations omitted). Further, [p]arties' efforts to support candidates by

marking them with the party trademark, so to speak, have been successful enough to make the

party name, in the words of one commentator, the most important resource that the party

possesses. Id. (citations omitted). Further, all evidence suggests party labels are indeed a

central consideration for most voters. Id. (citations omitted). Surely Partys Mark, or the mark

of any political party, is inherently distinctive andentitled to protection. Two Pesos, 505



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U.S. at 768. This is especially true where Party has expended significant resources to make its

name and mark a trusted symbol. Evans Decl. 12.

Also instructive is the Second Circuits decision in United We Stand America Inc. v.

United We Stand, America New York, Inc., 128 F.3d 86 (2d Cir. 1997). There, the plaintiff

brought suit to enjoin the use of its registered service mark which was a service mark initially

used by the principal campaign committee for Ross Perots 1992 presidential campaign. United

We Stand, 128 F.3d at 88. Summary judgment was granted in favor of the plaintiff and the

Second Circuit affirmed. Like Justice Scalia, the Second Circuit explained the importance of a

political organizations mark:

A political organization that adopts a platform and endorses candidates under a

trade name performs the valuable service of communicating to voters that it has

determined that the election of those candidates would be beneficial to the

objectives of the organization. Thus voters who support those objectives cansupport the endorsed candidates with some confidence that doing so will advance

the voters' objectives. If different organizations were permitted to employ the

same trade name in endorsing candidates, voters would be unable to derive any

significance from an endorsement, as they would not know whether theendorsement came from the organization whose objectives they shared or from

another organization using the same nameThe resulting confusion would be

catastrophic; voters would have no way of understanding the significance of anendorsement or position taken by parties of recognized major names. The

suggestion that the performance of such functions is not within the scope of

services in commerce seem to us to be not on ly wrong but extraordinarilyimpractical for the functioning of our political system.

Id. at 90. In light of the foregoing, there can be no doubt that Partys mark is protectable. See,

e.g., Partido Revolucionario Dominicano (PRD) Seccional Metropolitana de Washington-DC,

Maryland y Virginia v. Partido Revolucionario Dominicano, Seccional de Maryland y Virginia,

312 F. Supp. 2d 1, 11 (D.D.C. 2004) ([Lanham Act] protections extend to the names and

symbols related to political organizations.) (citing United We Stand, 128 F.3d at 90).



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b. Under SB54, Partys Mark Will Be Used In Connection With Goods Or Services.

Again, United We Standis instructive. As the Second Circuit explained, [t]he term

services has been interpreted broadly. United We Stand, 128 F.3d at 89. [T]he right to

enjoin infringement of a trade or service mark is as available to public service organizations as

to merchants and manufacturers. Id. (citation omitted). And retention of a distinct identity by

a non-profit organization that sells no goods is just as important as it is to a commercial

company. Id. (internal quotations and citation omitted). Accordingly, [t]he Lanham Act has

thus been applied to defendants furnishing a wide variety of non-commercial public and civic

benefits. Id. at 90. Under SB54, the State provides a non-commercial public and civic

benefit[] by overseeing general elections. Indeed, as the Supreme Court explained inJones,

States have a major role to play in structuring and monitoring the election process. Jones, 530

U.S. at 572. Here, among other things, the State is charged with regulating paper ballots. See

Utah Code Ann. 20A-6-301, et seq as amended. Thus, the State is engaged in dissemination of

information which has been categorized as a service under the Lanham Act. See United We

Stand, 128 F.3d at 90 (citing Committee for Idahos High Desert v. Yost, 881 F. Supp. 1457,

1470-71 (D. Idaho 1995)). The concurring and dissenting opinions in Washington State Grange

recognized the importance of this service. Citing to Justice Scalias dissent, Chief Justice

Roberts recognized that what makes the ballot special is precisely the effect it has on voter

impressions. Washington State Grange, 552 U.S. at 460 (Roberts, C.J. concurring). Namely

that [the ballot] is the only document that all voters are guaranteed to see, and it is the last thing

the voter sees before he makes his choice. Id. at 465 (Scalia, J. dissenting) (citations omitted).

Here, SB54 allows the State to use Partys mark in connection with goods or services.



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Without Partys authorization, the statute gives the State the right to allocate the Partys mark as

set forth in the law. Evans Decl. 52, 55. To the extent the State argues that this element is not

metbecause the State does not offer competing services, the Court should not be persuaded.

See Washington State Republican Party v. Washington State Grange, 676 F.3d 784, 795 (9th Cir.

2012) (affirming dismissal of trademark claim where Libertarian Party did not even attempt[]

to show that state uses party labels on ballot to perform a service in competition with the

Libertarian Party). It is well established that liability for trademark infringement can extend

beyond those who actually mislabeled goods with the mark of another. Inwood Laboratories,

Inc. v. Ives Laboratories, Inc., 456 U.S. 844, 853 (1982). In other words, liability is not limited

to the one who offers the competing services. As theInwoodCourt explained, if a manufacturer

or distributor intentionally induces another to infringe a trademark, or if it continues to supply its

product to one whom it knows or has reason to know is engaging in trademark infringement, the

manufacturer or distributor is contributorially responsible for any harm done as a result of the

deceit. Id.at 854. Here SB54 would allow the State to use Partys mark and associate it with

candidates whom the State knows or has reason to know are not actually endorsed by Party

and whom the Party did not select as its nominee. Evans Decl. 52, 55. SB54 would allow the

State to associate Partys mark with candidates who do not adhere to Partys platform, are not

accountable to Party, and are otherwise in direct competition with Party and potentially Partys

actual preferred nominee. Id. 52, 55-56, 59. Under SB54, the State would certainly be liable

pursuant to the doctrine of contributory infringement.

c. The States Use Of Partys Mark Is Likely To Cause Confusion.

The States use of Partys mark under SB54 is likely to cause confusion. SB54 permits



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the State to associate Partys mark with candidates who do not adhere to Partys platform and

who are not the standard bearer for Partys message. To quote from United We Stand:

A political organization that adopts a platform and endorses candidates under a

trade name performs the valuable service of communicating to voters that it has

determined that the election of those candidates would be beneficial to the

objectives of the organization. Thus voters who support those objectives cansupport the endorsed candidates with some confidence that doing so will advance

the voters' objectives. If different organizations were permitted to employ the

same trade name in endorsing candidates, voters would be unable to derive any

significance from an endorsement, as they would not know whether theendorsement came from the organization whose objectives they shared or from

another organization using the same nameThe resulting confusion would be

catastrophic; voters would have no way of understanding the significance of anendorsement or position taken by parties of recognized major names.

United We Stand, 128 F.3d at 90-91. If candidates who do not adhere to Partys platform and

who are not endorsed by Party are allowed to have Partys mark placed next to their name on the

ballot, as SB54 allows, surely there will be catastrophic confusion. Indeed, as Justice Scalia

explained, party labels are indeed a central consideration for most voters and a political partys

goal of promot[ing] the election of candidates who will implement [its] viewsis achieved in

large part by marking candidates with the partys seal of approval. Washington State Grange,

552 U.S. at 463-64 (Scalia, J. dissenting). This element is satisfied in Partys favor, and the

Party has met its burden to obtain a preliminary injunction.

CONCLUSION

For the foregoing reasons, the Court should grant a preliminary injunction staying the

enforcement or implementation of SB54 during the pendency of this matter.

STATEMENT REGARDING TEMPORARY RESTRAINING ORDER

After Plaintiff filed its complaint in this matter, the parties reached out to discuss

procedures they could use to expedite consideration of this matter. Those discussions are



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ongoing, but in the context of those discussions, and in particular as concerning Plaintiffs then-

stated intention to apply for a temporary restraining order to stay the enforcement or

implementation of SB54 during the pendency of a motion for preliminary injunction, the State

stated its understanding that SB54 does not require Defendants to take any immediate action

affecting the rights of the Party, and agreed not to use the lack of any temporary restraining order

against Plaintiff in responding to this motion. Based on that, Plaintiff moves for preliminary

injunction without a corresponding application for a temporary restraining order.

Dated: January 5, 2014.

/s/ Marcus R. Mumford

Marcus R. MumfordAttorney for Plaintiff



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CERTIFICATE OF SERVICE

I hereby certify that on January 5, 2015, I electronically filed the foregoing

PLAINTIFFS AMENDED MOTION FOR A PRELIMINARY INJUNCTIONwith the

Clerk of Court using the CM/ECF system which sent notification of such filing to the following:

David N. Wolf

[email protected]

Parker [email protected]

Gregory M. [email protected]

/s/ Joshua S. Ostler

Joshua S. Ostler


Documents

Utah Republican Party, Preliminary Motion - Amended Final