Judge won’t block ‘Count My Vote’ law; Utah GOP says it may not be on 2016 ballot

Posted at 6:38 PM, Apr 10, 2015
and last updated 2015-04-10 23:21:40-04

SALT LAKE CITY -- A federal judge will not block a new election law from going into effect over the objections of the state's most powerful political party.

The Utah Republican Party claims that Senate Bill 54 -- the so-called "Count My Vote compromise" law could keep them off the ballot in 2016.

U.S. District Court Judge David Nuffer refused to grant the Utah GOP's request for a preliminary injunction, blocking SB54 from being implemented. In his ruling, Judge Nuffer said the party hadn't begun to comply with the election law, so they could not show how it was harming them.

"It’s preliminary. We’re not there yet," he said.

In arguments during a five-hour hearing on Friday, Utah GOP lawyer Marcus Mumford said the party cannot make the choice that SB54 requires.

"Why?" Judge Nuffer asked.

"Our members, have told us no," Mumford replied, speaking of GOP delegates. "Our members have told us, our governing body has told us, 'We reject this.'"

Mumford suggested that SB54 was specifically designed to target the GOP, which operates under a caucus/convention system. "Count My Vote" was a signature drive that would have done away with that system, but SB54 was drafted in a compromise and passed last year by the Utah State Legislature. It provides a path for candidates to get on the ballot and skip the caucus/convention system if they get enough signatures.

Judge Nuffer said the Republican Party couldn't show exactly how this new election law was harming them.

"I do not view the party's internal constraints as creating irreparable harm," he said.

Mumford said it infringes upon the Utah Republican Party's First Amendment right of free association, and the state has tried to force changes to the party's internal policies.

"What we see here is a whole statute that imposes on the party, this choice," he said.

Judge Nuffer cut off his argument.

"I don’t want to be offensive, but I don’t care," he said.

The judge did add that if SB54 forced association, in which unaffiliated voters may be able to jump into a primary election,  created a constitutional quagmire. But he pointed out that the Republican Party had yet to choose whether to be a "registered political party" or a "qualified political party" under SB54.

"As long as the rat can escape from the maze, it’s not a trap," he said. "So long as there’s no constitutional way out, you have a challenge."

Assistant Utah Attorney General David Wolf said the Utah GOP simply didn't like the choices the new law presented, but made no effort to comply with it. He argued that it benefited voters and opened doors for people to engage the political process.

"We don’t believe that SB54 severely burdens the rights of the Utah Republican Party," he told the judge. "SB54 recognizes that government is of the people, by the people and for the people."

Outside court, the Utah Lt. Governor's Office said it was proceeding with implementing the provisions of SB54. Most of the state's other political parties had already complied with it. The Utah Constitution Party had joined the Utah GOP in opposing the law, but sat silent through Friday's court hearing.

"They have until September 30 to determine if they’re going to be a qualified party," Mark Thomas, the director of Utah's elections office, told reporters.

Other political parties have already complied. In a statement Friday, the Utah Democratic Party said it was implementing changes. The Utah Libertarian Party also said it supported SB54.


Utah Republican Party leaders said they were weighing their options, including an appeal to the 10th U.S. Circuit Court of Appeals in Denver. Their lawsuit over SB54 itself will proceed in federal court.

Utah GOP leaders will have to approach the party's thousands of delegates at their August convention with a proposal to change party bylaws to comply with SB54, something they admit is challenging.

"The delegates are going to have to decide if we change our governing documents to allow the party to make a choice," Utah Republican Party chairman James Evans said.

But Republican party leaders have threatened what seems unthinkable in one of the reddest of red states -- that the dominant Utah Republican Party would not be in the ballot in 2016.

"Pretty much," Evans said outside court.

Asked about the Utah Republican Party not appearing on the ballot, Thomas told FOX 13: "That's up to them."

In declarations with the federal court, Evans and Rep. David Lifferth, R-Eagle Mountain, said that being forced to implement the Count My Vote compromise law could seriously harm the GOP. Lifferth wrote that it could "destroy" the party.

In an interesting turn of events, the executive director of Count My Vote had quietly registered the name "Republican Party of Utah" with the state commerce department.

“Since this name can only be used in the event that the Utah Republican Party ceases to be a registered political party in Utah, it appears this filing was made in anticipation of that event,” Evans wrote in his declaration.

Asked to elaborate on the move outside court, Evans told FOX 13: "Isn’t that interesting that they would go out and register that name? I think that speaks for itself."

Morgan confirmed he had registered the name, but insisted to FOX 13 he was not looking to create a new political party if the Utah GOP crashes and burns in its lawsuit over SB54.

"It was unprotected and I protected it," he said, denying any ulterior motives. "There is no plan to do anything at this time."

The statement from the Utah Democratic Party:

“We applaud Judge Nuffer’s decision to refuse the Utah GOP’s request for an injunction on SB 54. The Utah Democratic Party is committed – and always has been – to bringing more Utahns into the political process. Our state is in dire need of greater political balance, and SB54 is an important step in that direction. 

Utah Democrats are ready and excited for the changes SB54 will bring to our political system. We – along with Utahns of all political persuasions (85 percent of Democrats, 73 percent of independent voters, and almost half of Republicans) –  support an alternative path to the ballot and believe an open elections system will provide increased opportunities for all voters to participate in the civic process.

Since the law went into effect on January 1, Utah Democrats have been making the necessary changes and updates to comply with Utah’s new election rules. The Utah GOP has not only failed to comply, but claims SB54 violates its rights as a party. On top of that, the GOP has wasted taxpayer time and money on needless court proceedings. It’s hard to understand why a party that purports to speak for Utahns would oppose a measure to provide even more Utahns a political voice.

SB54 provides the GOP with a legitimate alternative to the caucus-convention system that will allow more Utahns the opportunity to get involved. SB54 opens up the political system to all political persuasions in a state so permeated by political homogeneity. This law will allow the voices of independent voters to finally be heard in Utah.”  

Read the statement from the Libertarian Party of Utah:

"The Libertarian Party invites all voters who are not happy with candidates of other parties to consider joining our party. The fight over SB54 presupposes that Utah is essentially a one-party state, and that whoever is nominated by the Republican Party will have no meaningful opposition. That will only be true as long as voters allow it to be true. We invite those disaffected by Republican candidates and the way the Republicans choose their candidates to vote for us, or to consider becoming a party member and a Libertarian candidate."

Read the statement from Utah Republican Party Chairman James Evans:

"As Chair of the Utah Republican Party, I look forward to taking our legal challenge through the next phase of the litigation process. Based upon Judge Nuffer's remarks, the Party is confident that SB54 will be ruled unconstitutional in whole or in part. Judge Nuffer correctly noted that forcing political parties to open their primaries to unaffiliated voters represents 'forced association.' Political parties have well-established first amendment rights and the Party is determined to defend ours against encroachment from the state."