Utah GOP Motion For Summary Judgment

Case 2:14-cv-00876-DN-DBP Document 168 Filed 09/23/15 Page 1 of 27
Marcus R. Mumford (12737)

MUMFORD PC
405 South Main Street, Suite 975
Salt Lake City, Utah 84111
Telephone: (801) 428-2000
Email: mrm@mumfordpc.com
Attorney for Plaintiff Utah Republican Party
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH, CENTRAL DIVISION
UTAH REPUBLICAN PARTY,
CONSTITUTION PARTY OF UTAH,
[CORRECTED] PLAINTIFF UTAH

REPUBLICAN PARTYS MOTION
FOR SUMMARY JUDGMENT
Plaintiff and Intervenor,
Case No. 2:14-cv-00876-DN
Plaintiff,
v.
Judge David Nuffer
Magistrate Judge Dustin B. Pead
GARY R. HERBERT, et al.,

Defendants.
INTRODUCTION
Democracy is two wolves and a lamb voting on what to have for lunch.
Liberty is a well-armed lamb contesting the vote.1
The above quote, widely attributed to Benjamin Franklin, epitomizes the circumstances
presented by this case. In 2014, two wolves, Utah lawmakers and a powerful group of wealthy
bipartisans called Count My Vote (CMV) negotiated a grand compromise between
themselves, amending Utahs election code to give them what they both wanted: greater control
over the process employed by the Utah Republican Party (UTGOP or Party) to select and
endorse candidates for elected office at the federal, state and local levels. The grand
compromise was SB54. Those responsible for SB54 admitted that its intent was invidious and
Widely, if not assuredly, attributed to Benjamin Franklin. Patel v. Texas Dept of Licensing
& Regulation, __ S.W.3d __, 2015 WL 3982687, at *18 & n.6 (Tex. June 26, 2015) (Willett, J.,
concurring).
1
content-based. Recognizing the Partys success in getting its candidates elected to office, SB54
was enacted to dilute the Partys power, produce nominees with different priorities and
views than the Party and its members, and to make the Partys winning candidates less
accountable to the Party and its Platform.2
But the law does not leave the Party defenseless. The Supreme Courts cases
vigorously affirm the special place the First Amendment reserves for, and the
special protection it accords, the process by which 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 may be translated into concerted action,
and hence to political power in the community.3
Accordingly, with this motion, the Party moves for summary judgment that: (1) SB54 is
unconstitutional in that it burdens the Partys constitutional rights without a commensurate state
interest; (2) the invalid provisions of SB54 cannot be severed from the remaining portion of the
statute and thus it should be stricken down in its entirety; and, finally, (3) by enacting SB54 with
the stated intent to dilute the Partys power and moderate its allegedly extreme views, the
State impermissibly infringed on the Partys fundamental rights.
STATEMENT OF ELEMENTS AND UNDISPUTED MATERIAL FACTS
A. Elements Of The Claims
1. The Unconstitutionality Of SB54
A court considering a challenge to state election law must weigh the character and
magnitude of the asserted injury to the rights protected by the First and Fourteenth Amendments
See Ex. 9 (Count My Vote, Why Change Utahs Election System?), referenced in Dkt 2 at 50
& n.39, and available at http://www.countmyvoteutah.org/facts (last accessed October 16, 2014).
3
California Democratic Party v. Jones, 530 U.S. 567, 575 (2000) (quoting Tashjian v.
Republican Party of Connecticut, 479 U.S. 208, 216 (1986), and Eu v. San Francisco County
Democratic Central Committee, 489 U.S. 214, 224 (1989)).
2
that the plaintiff seeks to vindicate against the precise interests put forward by the State as
justifications for the burden imposed by its rule, taking into consideration the extent to which
those interests make it necessary to burden the plaintiffs rights.4 The results of this evaluation
will not be automatic; as we have recognized, there is no substitute for the hard judgments that
must be made.5 Where a regulation places severe restrictions on First Amendment rights, it
must be narrowly drawn to advance a state interest of compelling importance.6 Where it
imposes more limited restrictions, it is subject to less scrutiny in justifying the restrictions. 7 In
Burdick v. Takushi, the Supreme Court refined the standard it previously established in Anderson
v. Celebrezze, but it has not yet established a clear test for what constitutes a severe burden.8 In
Crawford v. Marion County Election Board, Justice Scalia suggested that a burden is severe if it
goes beyond the merely inconvenient.9 In asserting the states interests, Defendants must make
a clear argument regarding the precise interests to be protected and cannot rely on generalized
and hypothetical interests identified in other cases.10
Burdick v. Takushi, 504 U.S. 428, 434 (1992) (citing Anderson v. Celebrezze, 460 U.S. 780,
789 (1983); Tashjian v. Republican Party of Connecticut, 479 U.S. 208, 21314 (1986)).
5
Anderson, 460 U.S. at 789 (quoting Storer v. Brown, 415 U.S. 724, 730 (1974)).
6
Burdick, 504 U.S. at 434 (citing Norman v. Reed, 502 U.S. 279, 289 (1992)).
7
Id. (internal citations omitted).
8
See Timmons v. Twin Cities Area New Party, 520 U.S. 351, 359 (1997) (No bright line
separates permissible election-related regulation from unconstitutional infringements.); The
Constitution Party of Pennsylvania v. Cortes, __ F. Supp. 3d __, 2015 WL 4506167, at *10 (E.D.
Pa. July 23, 2015) (citing Timmons).
9
Crawford v. Marion County Election Board, 553 U.S. 181, 205 (2008) (Scalia, J., concurring).
10
Libertarian Party of Ohio v. Blackwell, 462 F.3d 579, 593 (6th Cir. 2006) (citing Reform Party
of Allegheny County v. Allegheny County Dept of Elections, 174 F.3d 305, 315-16 (3d Cir.
1999), Anderson, 460 U.S. at 789, and Edenfield v. Fane, 507 U.S. 761, 768 (1993) (ruling that
courts cannot supplant the precise interests put forward by the State with other suppositions in
evaluating restrictions on commercial speech under the Central Hudson test)).
3
2. Inapplicability Of Severance
Courts prefer to enjoin the objectionable portion of an unconstitutional statute, leaving
the rest intact.11 But the issue of severability is a question of state law.12 In Utah, the matter
is determined first and foremost by answering the following question: Would the legislature have
passed the statute without the unconstitutional section?13 The court should consider any
evidence that the objectionable portions of the law are interrelated to the non-objectionable
portions such as whether the invalidated provision could be regarded as part of a legislative
compromise, extracted in exchange for the inclusion of other provisions of the statute, or
whether the invalidated portions are so interdependent that the remainder of the statute cannot
function effectively without the invalidated provision.14 Where unconstitutional provisions are
interrelated to the rest of the statute, a court should strike it down in its entirety, regardless of
any severability clause, because courts cannot make conjecture about whether the legislature
intended valid portions of an act to stand independent of invalid portions.15
3. Invidious Discrimination
The freedom to engage in association for the advancement of beliefs and ideas is an
inseparable aspect of the liberty assured by the Due Process Clause of the Fourteenth
11
See Ayotte v. Planned Parenthood of N. New England, 546 U.S. 320, 328-329 (2006).
Leavitt v. Jane L., 518 U.S. 137, 139 (1996); Washington State Republican Party v.
Washington State Grange, 676 F.3d 784, 798 (9th Cir. 2012) (quoting Ariz. Libertarian Party,
Inc. v. Bayless, 351 F.3d 1277, 1283 (9th Cir. 2003)).
13
Leavitt v. Jane L., 518 U.S. at 139 (internal citations omitted).
14
Id. at 141.
15
Salt Lake City v. International Assn of Firefighters Locals 1645, 593, 1654, & 2064, 563 P.2d
786, 791 (Utah 1977).
12
Amendment, which embraces freedom of speech.16 The Party and its members have a
fundamental right to associate and exercise their constitutional rights without being
discriminated against based on their allegedly extreme viewpoints.17 Under the First
Amendment, the government is prohibited from regulating speech when the specific motivating
ideology or the opinion or perspective of the speaker is the rationale for the restriction.18 And,
as one Tenth Circuit judge recently summarized: once animus is detected, the inquiry is over:
the law is unconstitutional.19 The reason for this bright line test is simple: even under rationalbasis review, the most forgiving of equal-protection standards, a law must still have a legitimate
purpose.20 Any legislative motive qualifying as animus is never a legitimate purpose.21
B. Statement Of Undisputed Material Facts
#
UNDISPUTED MATERIAL FACTS
EVIDENTIARY
SUPPORT
1.
The UTGOP is a Utah registered political party.
Dkt 69-3 (Thomas

Depo.) at 100:13
2.
The Party is organized by its members to nominate and support the

election of Republican candidates in partisan races for elected office
and to promote the principles set forth in its Platform.
Ex. 1 (2015 Party

Constitution) at
Art. I, B
3.
In furtherance of its mission, the Partys has adopted a platform to

express its common message on the timely political issues of the day.
Dkt 69-4 (Evans

Depo.) at 68:870:4, 100:2-101:1,
16
NAACP v. Ala., ex rel. Patterson, 357 U.S. 449, 460 (1958); NAACP v. Button, 371 U.S. 415,
430 (1963); Bates v. Little Rock, 361 U.S. 516, 52223 (1960).
17
Rosenberger v. Rector and Visitors of the University of Virginia, 515 U.S. 819, 829 (1995)
(citations omitted)
18
Id.
19
Bishop v. Smith, 760 F.3d 1070, 1103 (10th Cir. 2014) (Holmes, J., concurring).
20
Id. (citing Kimel v. Fla. Bd. of Regents, 528 U.S. 62, 84 (2000), and United States v. Angelos,
433 F.3d 738, 754 (10th Cir. 2006)).
21
Id. (citing Romer v. Evans, 517 U.S. 620, 632 (1996), City of Cleburne v. Cleburne Living
Ctr., 473 U.S. 432, 448 (1985), and U.S. Dep't of Agric. v. Moreno, 413 U.S. 528, 534 (1973).
5
113:4-114:22
4.
The Party is the dominant political party in Utah in terms of the

number of members and its success in getting its nominees elected to
public office at the federal, state, and local levels.
Dkt 69-3 at 203:4204:11; Dkt 13-3

(Evans Decl.) at
13-14.
5.
The Partys success in getting its candidates elected is attributable to

the candidate selection process that the Party has chosen and
designated for itself.
Dkt 13-3 at 14;

Dkt 103-1
(Gabrielson
Decl.) at 16; Dkt
104-1 (Lifferth
Decl.) at 4
6.
Compliance with this process is so important that the Party recently

amended its constitution to provide that Party membership is open to
any resident of the State of Utah who registers to vote as a Republican
and complies with the Utah Republican Party Constitution and Bylaws
.
Ex. 1 (2015
Constitution) at
Art. I, C
7.
The State is limited in what it can require in terms of how a registered

political party selects its candidates, mandating, in relevant party, only
that the Party register with the State, identify its name and emblem, and
adopt a constitution and bylaws that contain a procedure for selecting
party candidates at the federal, state, and county levels that allows
active participation by party members.
U.C.A. 20A-8401(2)(c); Dkt 693 at 99:11-103:21,

111:7-112:10
8.
The Party has designated a candidate selection process that seeks to

ensure that its members are substantively engaged and motivated to
contribute to the Partys mission and message, and that its candidates
represent the Platform and are responsive to the demands of members.
Dkt 103-1 at 35, 10-13; Dkt

104-1 at 5
9.
This designated candidate selection process is the culmination of years

of experience and effort by the Party to design a process that will
reliably produce candidates that have broad Party support, represent its
Platform and ideals, and have the ability to win general elections.
Dkt 13-3 at 1920; Dkt 103-1 at

10
10. Utah election code prohibits provisions governing primary elections

from being construed to govern or regulate the internal procedures of
a registered political party.
U.C.A. 20A-9401(2); Dkt 69-3

at 111:7-112:10
11. In this, the State has admitted that it has no interest or authority in
dictating to the Party how it should choose its candidates.
Dkt 69-3 at 99:11103:21, 111:7112:10
12. The State has admitted that it has no interest or authority to review the
Partys designated candidate selection process to determine its
compliance with the Utah election code.
Dkt 69-3 at
103:17-104:19,
133:3-24, 135:7136:5
13. The State has admitted that should not construe that part of Utahs
election code providing for primary elections to govern or regulate the
internal procedures of a registered political party.
Dkt 69-3 at 108:115; U.C.A.

20A-9-401(2)
14. The candidate selection process that the Party has designed and
implemented includes caucus meetings, nominating and organizing
conventions, and, where the Party deems necessary, a primary election.
Dkt 13-3 at 20;

Ex. 1 (2015
Constitution) Art
XII.1.A-.B &
.2.A-.J
15. At caucus meetings, members of the Party, organized by neighborhood

precincts, select delegates to the Partys county and state nominating
conventions. Participation is strictly limited to registered Party
members.
Dkt 13-3 at 21
16. The Partys bylaws mandate that caucus meetings begin with a prayer,
the recitation of the pledge of allegiance, and a reading of the Partys
Platform.
Dkt 13-3 at 21
17. These procedures ensure that the Partys caucus meetings engage
members substantively in the organizations common views and
principles, and that those selected as Party delegates understand and
accept the responsibility and trust their fellow members have placed in
them to vet candidates and play a leadership role in the Party.
Dkt 103-1 at 5;
Dkt 104-1 at 3
18. At the Partys county and state nominating conventions, the delegates
selected at neighborhood caucus meetings vote to nominate the Partys
candidates for partisan federal, state and local elected offices.
Dkt 13-3 at 22
19. By employing a process where the Partys candidates are selected by

delegates, who themselves were selected by members at neighborhood
caucuses around the state, the Party ensures that delegates are able to
engage candidates in substantive discussions on the issues important to
Party members, vet them more rigorously than a process without the
caucus and convention processes, and eliminate candidates that do not
represent Party values and standards.
Dkt 103-1 at 16;

Dkt 104-1 at 4
20. Among other things, the Party requires that candidates seeking its
nomination for elected office sign and submit a certification that they
Ex. 2 (Party
Bylaws) 8.0(A)
will comply with Partys candidate selection rules and processes.

21. The Party also requires that candidates seeking its nomination sign and
submit a disclosure statement regarding the Party Platform prior to the
nominating convention so that delegates may consider it in advance of
their selection.
Ex. 2 (Party
Bylaws) 8.0(A)(B); Dkt 13-3 at
22
22. In that Platform disclosure statement, candidates must certify that they
are not a candidate, officer, delegate nor position holder in any party
other than the Republican party, that they have read the
Platform, and that they either support and accept it in its entirety,
or with the exceptions specified, as the standard by which [their]
performance as a candidate and as an officeholder should be
evaluated.
Ex. 2 (Party
Bylaws) 8.0(A)(B)
23. The Partys nominating convention procedures require that delegates

be notified of any candidates failure to submit a Platform disclosure
statement immediately prior to balloting for that candidates office.
Ex. 2 (Party
Bylaws) 8.0(B);
Dkt 13-3 at 22
24. Except for candidates running unopposed, delegates to the nominating

convention vote for Party nominees only after substantive speeches are
made either by the individual candidates or on their behalf.
Dkt 13-3 at 22
25. The Partys constitution and bylaws dictate the voting procedure for the
nominating conventions, mandating multiple ballots for each elected
office until the field is winnowed to the top two candidates, or until a
candidate receives 60% or more of the delegates vote.
Dkt 13-3 at 23;

Ex. 1 (2015
Constitution) at
Art. XII.2.H-.J
26. The Partys constitution provides that [a] candidate for an office that
Ex. 1 (2015
receives 60% or more of the votes cast at any point in the balloting
Constitution) at
process at the state nominating conventions shall proceed to the general Art. XII.2.I
election.
27. If no candidate receives 60% or more of the delegates vote at
convention as to a particular elected office, the Party nominates the top
two candidates to run in a primary election.
Dkt 13-3 at 24;

Ex. 1 (2015
Constitution) at
Art. XII.2.I & 5.A
28. Only in this manner does the Party authorize the certification of its
nominee to the States election officer with its official mark and
endorsement.
Ex. 1 (2015
Constitution) at
Art. XII; Dkt 13-3
at 23
29. The Partys Constitution restricts participation in its primary election to
Dkt 13-3 at 25;

Ex 1 (2015
voters who are registered Republicans.
Constitution) at
Art. XII.5.B
30. Only by limiting its primaries to Party members and limiting its use of
a primary election to those instances where neither of the top two
candidates at the Partys nominating convention receive more than
60% does the Party ensure that its nominee will receive a majority of
votes cast by Party members in any primary election.
Dkt 13-3 at 2628
31. Without these procedures, the Party faces the possibility that a
candidate will become its nominee without receiving even a majority
vote from its members.
Dkt 103-1 at
10, 18-20; Dkt
13-3 at 26-29
32. In 2014, the Utah legislature passed SB54, and the Governor of Utah
signed it into law, amending the Utah election code extensively.
Ex. 8 (SB54)
33. In 2015, the Utah legislature passed SB207, and the Governor of Utah
signed it into law, further amending the Utah election code. (For ease
in reference, this motion will refer to the amendments to the Utah
election code as set forth in SB54 and SB207 collectively as SB54.)
Dkt 61-1
34. Under SB54, political parties desiring to have candidates featured with
party affiliation on the upcoming general election ballot must file a
statement with the Lieutenant Governor to proceed as an RPP or QPP.
Dkt 69-3 at
100:15-103:16
35. If the Party does not choose one of the two paths, the State takes
away its right to appear on the ballot as a straight ticket option.
Dkt 69-3 at
112:11-114:5,
127:21-128:8,
128:21-130:7,
172:20-174:18
36. In this litigation, the Party asserted initially that SB54 burdened its
rights by requiring amendments to its constitution and bylaws.
Dkt 13-3 at 6786
37. The State admitted that SB54 recited candidate selection procedures
that did not include a prayer, recitation of the pledge of allegiance, and
a review of the Partys platform.
Dkt 69-3 at
100:17-102:10
38. The State refused to say whether SB54 is consistent with U.C.A.
20A-9-401(2).
Dkt 69-3 at
108:22-109:18
39. The State represented that the Party did not need to make any changes
to its internal procedures in order to get its candidates on the general
election ballot with its caucus and convention system, and need only
Dkt 69-3 at 119:6124:7, 131:14-17,

132:9-133:15;
145:18-147:8;
file a letter with the state elections office declaring itself a QPP.
148:24-149:23;
151:21-152:25
40. SB54 requires that parties who certify their intent to participate in the
upcoming election as a QPP allow unaffiliated voters to participate in
their primary election, forcing the Party to open itself up as a QPP to a
population of unaffiliated voters almost equal to the number of
registered Republicans in the state.
U.C.A. 20A-9101(12)(a); Dkt

69-3 at 214:13215:13
41. The State admitted that this unaffiliated voter requirement under SB54
would dilute the Partys impact on elections in the State, taking no
position as to whether this was a desirable outcome.
Dkt 69-3 at
203:13-204:11
42. The State has testified that it intends to enforce the unaffiliated
voters provision of the QPP, regardless of whether the Partys
candidate selection processes limit participation in its primary elections
to members of the Party only.
Dkt 69-3 at
178:23-181:1,
181:17-182:3
43. The State also admitted that SB54 forces a Party to accept candidate
selection procedures without any provision to ensure that the Partys
candidate is selected by a majority, as opposed to a mere plurality, of
Party members.
Dkt 69-3 at 186:5189:17
44. The States representative admitted that this plurality issue was a
legitimate concern regarding SB54.
Dkt 69-3 at 188:417
45. At the hearing held April 10, 2015, on the Partys motion for a
preliminary injunction, the Court explained to the Party: If you dont
choose [a path as between QPP and RPP] then I wont know how
SB54 burdens the Partys rights.
Ex. 3 (4/10/2015
Hrg.) 45:15-22
46. The Court denied the Partys motion for a preliminary injunction based
on its conclusion that the Partys as applied challenge to SB54 was
not yet ripe, because it had yet to designate itself as a QPP, and that
the Partys facial challenge failed because the burdens RPP imposed
were easily resolvable by the party membership requirements and
[t]he State has nothing to say about whos [a] member of the a party
except to say its determined in accordance with party rules.
Ex. 3 (4/10/2015
Hrg.) 122:15124:12
47. Regarding the unaffiliated voter issue, the court distinguished the
States arguments by pointing out that U.C.A. 20A-9-101(12)(a)
pushes the unaffiliated voter in, to a QPP, where [t]he voter under
past practice would make the choice to opt in, and it is the States
pushing or forcing which is questionable constitutionally.
Ex. 3 (4/10/2015
Hrg.) at 126:2125
10
48. On or about August 18, 2015, the Party sent a letter to the Utah
Lieutenant Governors office designating itself a QPP in the 2016
election cycle:
Ex. 4 (8/17/2015
Ltr.)
Pursuant to Utah Code Ann. 20A-9-101(12)(e), the Utah

Republican Party certifies its intent to nominate candidates in
2016 in accordance with its internal rules and procedures and
Utah Code Ann. 20A-9-406. This is without prejudice to the
positions the party has asserted in the matter Utah Republican
Party v. Herbert, et al., Case No. 2:14-cv-876 (D. Utah),
challenging the constitutionality of recent amendments to the
Utah Election Code.
49. The State has admitted SB54 was a grand compromise.
Dkt 69-3 at 155:7156:15
50. The State refused to reveal who the compromise was between, and of
what.
Dkt 69-3 at
156:12:157:5
51. But the unrebutted record shows Utah lawmakers were on one side of
the compromise.
Dkt 13 at iv-viii
& nn.3-18
52. And an organization called Count My Vote, or CMV, was on the other
side.
Dkt 13 at iv-viii
& nn.3-18
53. The legislative record shows how Utah lawmakers and CMV targeted
the Party and its rights with SB54.
Dkt 13 at iv-viii
& nn.3-18
54. Lawmakers stated that one of their purposes in passing SB54 was to
compel the Party to open its primaries, making its nominees more
representative of the entire State, as opposed to Party members.
Dkt 13 at viii &

n.17-18
55. The State has admitted that it has no interest in voter turnout, that it has
no evidence that voter turnout is indicative of voter satisfaction, and
that it has no evidence that SB54 will increase voter turnout.
Dkt 69-3 at 207:3210:22, 214:8-12
56. In discovery, the State refused to answer questions regarding the

States interest in SB54.
Dkt 69-3 at 69:371:19

purpose of SB54 as it concerns elections in Utah, including questions
regarding informal meetings involving Defendants and SB54 in the
2014 legislative session.
Dkt 69-3 at 71:2076:17
Dkt 69-3 at 76:18-
11
compromise that led to SB54, including questions regarding who was 77:5
compromising (i.e., a compromise between the State and Count My
Vote), and what was being compromised (i.e., the Partys rights).
States communications with CMV leaders, including with respect to
this lawsuit.
Dkt 69-3 at 78:1382:24
60. As SB54 adopted the CMV proposal in its entirety, the State adopted
CMVs arguments in this case.
Dkt 79-7
61. In discovery, the State also refused to provide any significant guidance
concerning how one might distinguish a legitimate election restriction
concerning the time, place, and manner of an election contest from
an unconstitutional State action.
Dkt 69-3 at
240:21-243:7
62. Finally, the State has refused to provide any other discovery regarding
the purpose of SB54 or its allegedly compelling state interests.
Exs. 5, 6, and 7
63. The purpose of SB54 was to cripple the effectiveness of the Partys
designated candidate selection processes and, ultimately, to destroy the
Republican Party in Utah as we know it.
Dkt 102-1 at 13;

Dkt 103-1 at 5, 920; Dkt 104-1 at
8-9
12
ARGUMENT
I. SB54 IMPERMISSIBLY BURDENS THE PARTYS CONSTITUTIONAL RIGHTS
The Supreme Court has repeatedly reaffirmed a two-track approach to determine whether
a challenged election law is constitutional: first, does it burden a political partys constitutional
rights, and, second, can the State justify that burden with a precise showing of the commensurate
governmental interest served by the law?22
Regulations that impose severe burdens on associational rights must be narrowly
tailored to serve a compelling state interest. However, when regulations impose
lesser burdens, a States important regulatory interests will usually be enough to
justify reasonable, nondiscriminatory restrictions.23
In Timmons v. Twin Cities Area New Party, the Supreme Court acknowledged that there is no
bright line test to determine if a burden is severe under this standard.24 Justice Scalia has
summarized the law in applying the first step:
Ordinary and widespread burdens, such as those requiring nominal effort of
everyone, are not severe. See [Clingman v. Beaver, 544 U.S. 581, 591, 593597
(2005)]. Burdens are severe if they go beyond the merely inconvenient. See Storer
v. Brown, 415 U.S. 724, 728729 (1974) (characterizing the law in Williams v.
Rhodes, 393 U.S. 23 (1968), as severe because it was so burdensome as to be
virtually impossible to satisfy).25
A court has to identify the alleged burden before it can weigh it.26 The Supreme Court
has given strong indications how it views the burdens that SB54 imposes on the UTGOP.27 In
Timmons, the Court held that the burdens imposed by a law banning fusion candidacies (where
22
Burdick, 504 U.S. at 434; Clingman v. Beaver, 544 U.S. 581, 586-587 (2005).
Clingman, 544 U.S. at 586-87 (quoting Timmons, 520 U.S. at 358).
24
See Timmons, 520 U.S. at 359 (citing Storer, 415 U.S. at 730); Cortes, __ F. Supp. 3d __, 2015
WL 4506167, at *10 (citing Timmons).
25
Crawford, 553 U.S. at 205 (Scalia, J., concurring).
26
Id.
27
Supra, Fact 47.
23
a candidate could appear as the nominee of more than one party on the ballot) were not severe
because the law in question did not directly limit the partys access to the ballot, merely
limiting the ability of a candidate to appear on the ballot multiple times, and also because the law
only limit[ed], slightly, the partys ability to send a message to the voters and to its preferred
candidates.28 In New York State Board of Elections v. Lopez Torres, the Court rejected the
argument that a states caucus and convention system for selecting judges burdened the rights of
challengers running against candidates favored by political party leadership, pointing out that a
partys associational rights to designate its own candidate selection process were more shield
than sword and could not be used by candidates challenging the partys nominees to invalidate
the states convention system.29 Finally, in Clingman v. Beaver, the Court upheld a states semiclosed primary law that prohibited any member of a political party from participating in another
partys primary election.30 As the Court observed: a voter who is unwilling to disaffiliate from
another party to vote in [anothers] primary forms little association with that other party, or
the other party with him or her.31
A.
SB54 Burdens The Partys Constitutional Rights By Mandating Forced

Association With Unaffiliated Voters.
Clingman stands in contrast to Jones and Tashjian, in that the laws at issue in those cases
forced a partys association.32 The Jones court observed how forced association has the likely
Timmons, 520 U.S. at 363 (holding that the burdens imposed on the partys constitutional
rights though not trivial are not severe); see also Burdick, 504 U.S. at 438-39 (upholding law
banning write-in voting because it did not burden the rights of voters to make free choices and to
associate politically through the vote).
29
New York State Bd. of Elections v. Lopez Torres, 552 U.S. 196, 203-05 (2008).
30
Clingman, 544 U.S. at 588.
31
Id. at 589.
32
Id. at 586-93.
28
outcome indeed, in this case the intended outcome of changing the parties message. We can
think of no heavier burden on a political partys associational freedom.33 In Democratic Party
of U.S. v. Wisconsin ex rel. La Follette, the Supreme Court struck down the states mandatory
open primary and ruled that it could not constitutionally compel the Democratic Party to seat a
delegation chosen in a way that violates its rules.34 [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.35 Jones struck
down a state law mandating a blanket primary without party differentiation, explaining:
[A] corollary of the right to associate is the right not to associate. Freedom of
association would prove an empty guarantee if associations could not limit control
over their decisions to those who share the interests and persuasions that underlie
the association's being. In no area is the political associations right to exclude
more important than in the process 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 ambassador to the general electorate in winning it over to the
partys views.36
As the Clingman court explained, the law at issue in Jones impermissibly compel[led] the
[political partys] association with unwanted members or voters.37
These principles regarding forced association apply outside the context of election law. In
Boy Scouts of Am. v. Dale, the Supreme Court held that [t]he forced inclusion of an unwanted
person in a group infringes on the groups freedom of expressive association if the presence of
33
Jones, 530 U.S. at 581-82.

Democratic Party of U.S. v. Wisconsin ex rel. La Follette, 450 U.S. 107, 122 (1981).
35
Id. (quoting Kusper v. Pontikes, 414 U.S. 51, 56 (1973)) (citation omitted).
36
Jones, 530 U.S. at 574-75 (citations omitted).
37
Id. at 577.
34
that person affects in a significant way the groups ability to advocate public or private
viewpoints.38 Clingman made a similar point in distinguishing Tashjian:
In Tashjian, this Court identified two ways in which Connecticuts closed primary
limited citizens freedom of political association. The first and most important
was that it required Independent voters to affiliate publicly with a party to vote in
its primary. That is not true in this case.39
As set forth above, the Party has established, in the States own words, the burden that
SB54 imposes on the First Amendment rights of the Party in terms of forced association. The
State admitted that a party designating itself a QPP would be forced to include independent
voters in its primary election, and that the State intends to enforce that provision.40 It admitted
further that SB54 will have the effect of diluting the Partys impact on elections in the State, and
the Partys only real choice is whether to relinquish control of its candidate selection process
to the State under SB54 or simply forego being on the ballot.41 The Court indicated previously
that it viewed the way 20A-9-101(12)(a) forces a party designated itself a QPP to accept
unaffiliated voters questionable constitutionally.42 That puts this case in the yard with Jones,
Tashjian, and Dale, as opposed to Clingman and Timmons. Now that the Party has designated
itself a QPP under SB54,43 the forced inclusion of unaffiliated voters in its primary election is a
severe burden on its rights of association.
38
Boy Scouts of Am. v. Dale, 530 U.S. 640, 648-49 (2000) (rejecting claim that the Boy Scouts
refusal to admit a gay rights activist as assistant scoutmaster violated plaintiffs First
Amendment right of expressive association) (citing New York State Club Assn., Inc. v. City of
New York, 487 U.S. 1, 13 (1988)).
39
Clingman, 544 U.S. at 592 (citations omitted).
40
Supra, Facts 40-42.
41
Supra, Facts 41-42.
42
Ex. 3 (4/10/2015 Hrg.) at 125:4-127:5.
43
Supra, Facts 48; Ex. 4.
4
Any effort on the part of the State to justify this burden in terms of the choice that the
Party has under SB54 is contrary to the unconstitutional choice doctrine:44 [O]ur modern
unconstitutional conditions doctrine holds that the government 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 to that benefit.45
It does no good for the State to try and justify SB54 in terms of choice where that
choice is between two paths that each mandate changes to a partys internal processes, and
where a partys failure to choose either path will result in its losing the right to have [its]
candidates on the ballot and to appear on the ballot as a straight ticket.46 The State has admitted
that the choices imposed by SB54 include choosing to allow unaffiliated voters to participate
in the Partys elections under QPP procedures, meaning that, to keep its convention, the Party
would have to open itself up to a population of unaffiliated voters almost equal to the number of
registered Republicans.47 Accordingly, SB54 is unconstitutional in its mandate to allow
unaffiliated voters to participate in the Partys primary as a QPP.
B. Other Ways SB54 Burdens The Partys Constitutional Rights
The Party has raised other issues with SB54 that are slightly less cut and dry, especially
in light of the States testimony that it has no interest or authority to dictate how a Utah political
44
Supra, Facts 34-35.

Board of County Commrs v Umbehr, 518 U.S. 668, 674 (1996) (quoting Perry v. Sindermann,
408 U.S 593, 597 (1972)); see also 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.).
46
Supra, Facts 34-35.
47
Supra, Facts 40.
45
party selects its candidates.48 At the suggestion of the Court, the Party has largely addressed the
what it terms the plurality and substitution of judgment issues raised previously by way of Party
membership requirements and other amendments to its constitution and bylaws that clarify the
priority of its designated candidate selection process.49
It is undisputed 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.50 The Supreme Court has
reiterated how our cases vigorously affirm the special place the First Amendment reserves 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.51 Simply, [i]n no area is the
political associations right to exclude more important than in the process of selecting its
nominee.52 To prevent a political party from endorsing and opposing candidates of their choice
not only burdens their freedom of speech but also infringes upon their freedom of
association.53 This is because the 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.54
48
Supra, Facts 11-13.

Supra, Facts 46.
50
Lopez Torres, 552 U.S. at 202.
51
Jones, 530 U.S. at 575 (quoting Tashjian, 479 U.S. at 216).
52
Id.
53
Eu v. San Francisco County Democratic Central Committee, 489 U.S. 214, 224 (1989).
54
La Follette, 450 U.S. at 122 (citation omitted).
49
It seems the only remaining issue, then, is whether the Court is willing to base a summary
judgment, in part, on these representations and assurances made by the State. The Declaratory
Judgment Act seems to provide for such, especially where necessary to avoid a potential
ambiguity in the future.55 Given that the Party has designated itself a QPP under SB54 in reliance
on the States representations regarding its lack of interest and authority to second-guess the
Partys designated candidate selection system, the Party requests partial summary judgment on
that basis.56
II. THE STATE CANNOT SHOW A COMPELLING STATE INTEREST.
Where a law places severe restrictions on a partys First Amendment rights, the State
must demonstrate that it was narrowly drawn to advance a state interest of compelling
importance.57 In asserting the States interests, Defendants must make a clear argument
regarding the precise interests to be protected and cannot rely on generalized and hypothetical
interests identified in other cases.58 Here, Defendants have refused and failed to provide
anything more than the generalized and hypothetical interests identified in other cases.59
The rules governing discovery provide that where a party has not disclosed or supplement
information in response to discovery requests, it should not be allowed to use that information
55
28 U.S.C. 2201.
See Lopez Torres, 552 U.S. at 206 (Selection by convention has never been thought
unconstitutional, even when the delegates were not selected by primary but by party caucuses.).
57
Burdick, 504 U.S. at 434 (citing Norman, 502 U.S. at 289).
58
Libertarian Party of Ohio v. Blackwell, 462 F.3d 579, 593 (6th Cir. 2006) (citing Reform Party
of Allegheny County v. Allegheny County Dept of Elections, 174 F.3d 305, 315-16 (3d Cir.
1999), Anderson, 460 U.S. at 789, and Edenfield v. Fane, 507 U.S. 761, 768 (1993) (ruling that
courts cannot supplant the precise interests put forward by the State with other suppositions in
evaluating restrictions on commercial speech under the Central Hudson test)).
59
Supra, Facts 55-56, 62-63.
56
to supply evidence on a motion.60 Accordingly, summary judgment is warranted on the

above issues where the Party has established that SB54 burdens its constitutional rights.
III. SB54 SHOULD BE STRICKEN IN ITS ENTIRETY
When a court finds a statute unconstitutional, it is preferable to enjoin the
unconstitutional portion of the statute while leaving the rest intact.61 But the Supreme Court has
cautioned courts against rewriting state law to conform it to constitutional requirements.62 And
the issue of severability is a question of state law.63 In Utah, the matter is determined first
and foremost by answering the following question: Would the legislature have passed the statute
without the unconstitutional section?64 Thus, in determining whether the act is severable, courts
must look to legislative intent.65 The court should consider any evidence that the objectionable
portions of the law are interrelated to the non-objectionable portions such as whether the
invalidated provision could be regarded as part of a legislative compromise, extracted in
exchange for the inclusion of other provisions of the statute, or whether the invalidated portions
are so interdependent that the remainder of the statute cannot function effectively without the
invalidated provision.66 Where unconstitutional provisions are interrelated to the rest of the
statute, a court should strike it down in its entirety, regardless of any severability clause, because
60
Fed. R. Civ. P. 37(c).

See Ayotte, 546 U.S. at 328-29.
62
Id. at 329 (citations omitted).
63
Leavitt, 518 U.S. at 139; Washington State Republican Party, 676 F.3d at 798.
64
Leavitt, 518 U.S. at 139 (internal citations omitted).
65
Ayotte, 546 U.S. at 330.
66
Leavitt, 518 U.S. at 141.
61
courts cannot make conjecture about whether the legislature intended valid portions of an act
to stand independent of invalid portions.67
Here, the Party has provided the Court with an extensive recitation of the legislative
history of SB54, showing that it was the result of a purported compromise between Utah
lawmakers and CMV to abridge the Partys constitutional rights through the Utah election law.68
The State has also obstructed and refused discovery on the factual issues of legislative intent that
might call into question the presentation made by the Party.69 Assuming that the Court only
invalidates U.C.A. 20A-9-101(12)(a), the State has not, and cannot provide it with any basis to
conclude whether the Utah legislature would have passed the remaining portion of SB54 without
the unconstitutional portion.70 Indeed, the fact that SB54 was a grand compromise would
indicate that none of the sections should be severed. Leaving one part of such a grand
compromise out would render the entire agreement incomplete, such that it cannot be salvaged
as a meaningful legislative enactment.71 And how should the Party reconcile the remaining
portions of SB54?72 [W]e cannot uphold a provision if its separate existence would be
inconsistent with Congress basic objectives in enacting the statute.73 '"
International Assn of Firefighters Locals 1645, 593, 1654, & 2064, 563 P.2d at 791.
Supra, Facts 49-53.
69
Supra, Facts 38, 57-59, 62-63.
70
Leavitt, 518 U.S. at 139 (internal citations omitted).
71
Id. at 141.
72
American Assn of People with Disabilities v. Herrera, Case No. 08-cv-702, 2010 WL
3834049, at *4 (D.N.M. July 28, 2010) (A statute violates due process if it is so vague that a
person of common intelligence cannot discern what is prohibited, required, or tolerated.)
(quoting Mini Spas, Inc. v. South Salt Lake City Corp., 810 F.2d 939, 942 (10th Cir. 1987)).
73
Ameur v. Gates, 759 F.3d 317, 325 (4th Cir. 2014).
67
68
There are additional issues that need to be considered before severing SB54. For
example, it appears that the sponsor of SB54, Senator Bramble, was inconsistent in reporting to
others that SB54 was intended to be severable or non-severable.74 The legislative intent suggests
that legislators did not want or intend SB54 to be severable. Does the Court apply that intent or
the demands of CMV who insisted that SB54 contain a severability clause? This is where it was
wrong for Defendants to refuse discovery. If SB54 was in fact a carefully negotiated
compromise, then how can the Court know if the legislature would have passed any part of the
law without invalid provisions such as 20A-9-101(12)(a)?75 In light of the foregoing, it would
be insufficient to strike 20A-9-101(12)(a) and leave the remaining portions of SB54 in tact.
IV. SB54 IMPERMISSIBLY DISCRIMINATES AGAINST THE PARTY.
Any law seeking to restrict political speech and association on the basis of content is
subject to strict scrutiny, which requires the Government to prove that the restriction furthers a
compelling interest and is narrowly tailored to achieve that interest.76 Courts have consistently
recognized that a states power to regulate the time, place, and manner of elections does not
justify, without more, the abridgment of fundamental rights, such as the freedom of speech and
Compare Ex. 10 (Bramble Fibbed to SCC About CMV Severability, Chris Herrod,
unconventional conservative blog, February 27, 2015, http://www.unconcon.com/?p=19980),
with Senator Brambles statements indicating that CMV refused to accept the notion of nonseverability. (See House Government Operations Committee, March 10, 2015, Audio,
http://utahlegislature.granicus.com/MediaPlayer.php?clip_id=18856&meta_id=550702).
75
See Leavitt, 518 U.S. at 139.
76
Sanders Cnty. Republican Cent. Comm. v. Bullock, 698 F.3d 741, 745 (9th Cir. 2012) (holding
that Montana law banning political party endorsement of judicial candidates violated political
partys fundamental rights) (quoting Citizens United v. Fed. Election Commn, 558 U.S. 310,
130 S. Ct. 876, 882 (2010)).
74
10
political association.77 Under the First Amendment, the government is prohibited from regulating
speech when the specific motivating ideology or the opinion or perspective of the speaker is the
rationale for the restriction.78 [T]his Court has more than once recognized by remarking upon
the close nexus between the freedoms of speech and assembly, because [e]ffective advocacy of
both public and private points of view, particularly controversial ones, is undeniably enhanced
by group association.79 The right to associate with the political party of ones choice is an
integral part of this basic constitutional freedom to associate with others for the common
advancement of political beliefs and ideas.80 Freedom to engage in association for the
advancement of beliefs and ideas is an inseparable aspect of the liberty assured by the Due
Process Clause of the Fourteenth Amendment, which embraces freedom of speech.81 Here, the
record is unrebutted that those responsible for SB54 targeted the UTGOP as the dominant
political party in the state, and that the law was intended to dilute the Partys effectiveness in
getting its candidates elected and moderate the allegedly extreme views of its members.82
In Jones, the Supreme Court considered the intent of the changes to the election code,
noting that forced association has the likely outcome indeed, in this case the intended outcome
of changing the parties message.83 In La Follette, the Supreme Court similarly considered
77
California Democratic Party v. Lungren, 919 F. Supp. 1397, 1401 (N.D. Cal. 1996)
(invalidating state law barring political party endorsements of candidates for nonpartisan elective
offices) (citing Tashjian, 479 U.S. at 217); Rosenberger, 515 U.S. at 829.
78
Rosenberger, 515 U.S. at 829.
79
Patterson, 357 U.S. at 460 (citing De Jonge v. Oregon, 299 U.S. 353, 364 (1937), and
Thomas v. Collins, 323 U.S. 516, 530 (1945)).
80
Kusper v. Pontikes, 414 U.S. 51, 57 (1973); see also Elrod v. Burns, 427 U.S. 347, 357 (1976)
(plurality opinion); Buckley v. Valeo, 424 U.S. 1, 15 (1976)
81
Patterson, 357 U.S. at 460; Button, 371 U.S. at 430; Bates, 361 U.S. at 52223.
82
Supra, Facts 4, 41-44, 51-63.
83
Jones, 530 U.S. at 581.
11
legislative intent to hold the state law at issue unconstitutional, noting that courts may not
interfere on the ground that they view a particular expression [expressed by a political partys
nominating procedures] as unwise or irrational.84 The Party has provided sufficient evidence to
award summary judgment on these issues.85
The Supreme Court has prohibited states from using election regulations to undercut a
political partys freedoms of speech or association.86 In his concurring opinion in Jones, Justice
Kennedy explained how it was [u]nder the First Amendments guarantee of speech through free
association that issues concerning the efficacy or desirability of a particular candidate selection
process are issue[s] for the party to resolve, not for the State.87
Political parties advance a shared political belief, but to do so they often must
speak through their candidates. When the State seeks to direct changes in a
political partys philosophy by forcing upon it unwanted candidates and wresting
the choice between moderation and partisanship away from the party itself, the
States incursion on the party's associational freedom is subject to careful scrutiny
under the First Amendment.88
Justice Scalia has summarized how political parties exist to promote their views, which
is achieved in large part by marking candidates with the partys seal of approval, and making
their names trusted symbols of certain approaches to governance that can be used to encourage
voters to cast their votes for the candidates that carry the party name so that: 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; and all evidence suggests party labels are indeed a central
84
85
86
87
88
La Follette, 450 U.S. at 124.

Supra, Facts 41-44, 51-63.
U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779, 833834 (1995).
Jones, 530 U.S. at 587 (Kennedy, J., concurring).
Id.
12
consideration for most voters.89 The State cannot show how SB54 is justified to serve a
compelling state interest in this regard. Accordingly, SB54 should be invalidated in its entirety as
restricting the Partys fundamental rights.
SB54 similarly fails under an equal protection analysis, wherein discriminatory laws that
impinge upon the exercise of a fundamental right are subject to the most exacting scrutiny.90 The
Party and its members have a right to exercise their constitutional rights without being targeted
by the State or discriminated against based on the viewpoints they express.91 Any restriction or
classification that might restrain their fundamental rights, such as the associational rights of a
political party, must be closely scrutinized and carefully confined.92
And finally, even if the Court was to disagree that SB54 implicates one of the Partys
fundamental rights, it still fails under a rational basis review pursuant to the animus doctrine.
Tenth Circuit Judge Holmes recently provided a comprehensive discussion of the animus
doctrine, which frequently involves legislation directed against politically unpopular groups.93
Focusing on the motivations that actually lay behind the laws as opposed to various post-hoc
rationalizations that could conceivably have justified them, in these so-called animus cases,
the Supreme Court has departed from the well-trod path of an equal protection analysis to
strike down laws based on their impermissible legislative motive.94
89
Washington State Grange, 552 U.S. at 463-64 (Scalia, J., dissenting) (citations omitted).
See Am. Constitutional Law Found., Inc. v. Meyer, 120 F.3d 1092, 1100 (10th Cir. 1997) aff'd
sub nom. Buckley v. Am. Constitutional Law Found., Inc., 525 U.S. 182 (1999) (citing Clark v.
Jeter, 486 U.S. 456, 461 (1988)).
91
Rosenberger, 515 U.S. at 829.
92
Harper v. Virginia State Bd. of Elections, 383 U.S. 663, 670 (1966); Tashjian, 479 U.S. at 217.
93
Bishop, 760 F.3d at 1097-1101 (Holmes, J., concurring).
94
Id. at 1099 (citing Romer, 517 U.S. at 632, Cleburne, 473 U.S. at 448, and Moreno, 413 U.S.
at 534).
90
13
[T]he hallmark of animus jurisprudence is its focus on actual legislative motive.

In the interest of analytical precision, it is important to clarify exactly what types
of legislative motive may be equated with animus. Those motives could be
viewed as falling somewhere on a continuum of hostility toward a particular
group.95
On the weaker end of the animus continuum, the impermissible legislative motive may be to
simply exclude a particular group from ones community based on irrational prejudice, i.e., an
us versus them legal construct.96 On the more extreme end, the legislative motive implicating
the animus doctrine may manifest itself in a more aggressive form specifically, a desire to
harm a politically unpopular group.97 At either end of this continuum, and everywhere in
between, the legislative motivation implicating the animus doctrine involves hostility to a
particular group.98 Where the animus doctrine is implicated, the result is automatic: once
animus is detected, the inquiry is over: the law is unconstitutional.99 The reason is simple: even
under rational-basis review, the most forgiving of equal-protection standards, a law must still
have a legitimate purpose.100 Any legislative motive qualifying as animus is never a legitimate
purpose.101
This is why the Party has pressed Defendants for discovery concerning the actual
legislative motives behind SB54, including the impermissible motivations of the wealthy and
moderate CMV group that went to the Utah legislature to change the states election code after
95
Id. at 1100 (citing Romer, 517 U.S. at 632, Cleburne, 473 U.S. at 448, and Moreno, 413 U.S.
at 534, and Bowers v. NCAA, 475 F.3d 524, 554 (3d Cir. 2007), which interpreted Cleburne as
prohibiting the construction of a caste system).
96
Id.
97
Id. (citing Moreno, 413 U.S. at 534).
98
Id.
99
Id. at 1103.
100
Id. (citing Kimel, 528 U.S. at 84, and Angelos, 433 F.3d at 754).
101
Id. (citing Romer, 517 U.S. at 632, Cleburne, 473 U.S. at 448, and Moreno, 413 U.S. at 534).
14
its efforts to get the Party to change its designated candidate selection process failed. But the
Party has marshaled unrebutted evidence showing, often in the words of the lawmakers
themselves, the impermissible motivations behind SB54, which included the intent to cripple the
effectiveness of the Partys candidate selection process and ultimately destroy the Utah
Republican Party as we know it.102
CONCLUSION
For the reasons stated, the Party requests summary judgment striking down SB54 as
unconstitutional.
Respectfully submitted this 22nd day of September, 2015.
/s/ Marcus R. Mumford
Attorney for Plaintiff Utah Republican Party
102
Supra, Facts 51-63.

15

Utah GOP Motion For Summary Judgment

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Case 2:14-cv-00876-DN-DBP Document 168 Filed 09/23/15 Page 1 of 27

Marcus R. Mumford (12737)

[CORRECTED] PLAINTIFF UTAH

Plaintiff and Intervenor,

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

GARY R. HERBERT, et al.,

Case 2:14-cv-00876-DN-DBP Document 168 Filed 09/23/15 Page 2 of 27

Case 2:14-cv-00876-DN-DBP Document 168 Filed 09/23/15 Page 3 of 27

Case 2:14-cv-00876-DN-DBP Document 168 Filed 09/23/15 Page 4 of 27

Case 2:14-cv-00876-DN-DBP Document 168 Filed 09/23/15 Page 5 of 27

UNDISPUTED MATERIAL FACTS

The UTGOP is a Utah registered political party.

Dkt 69-3 (Thomas

The Party is organized by its members to nominate and support the

Ex. 1 (2015 Party

In furtherance of its mission, the Partys has adopted a platform to

Dkt 69-4 (Evans

Case 2:14-cv-00876-DN-DBP Document 168 Filed 09/23/15 Page 6 of 27

The Party is the dominant political party in Utah in terms of the

Dkt 69-3 at 203:4204:11; Dkt 13-3

The Partys success in getting its candidates elected is attributable to

Dkt 13-3 at 14;

Compliance with this process is so important that the Party recently

The State is limited in what it can require in terms of how a registered

U.C.A. 20A-8401(2)(c); Dkt 693 at 99:11-103:21,

The Party has designated a candidate selection process that seeks to

Dkt 103-1 at 35, 10-13; Dkt

This designated candidate selection process is the culmination of years

Dkt 13-3 at 1920; Dkt 103-1 at

10. Utah election code prohibits provisions governing primary elections

U.C.A. 20A-9401(2); Dkt 69-3

Dkt 69-3 at 99:11103:21, 111:7112:10

Case 2:14-cv-00876-DN-DBP Document 168 Filed 09/23/15 Page 7 of 27

Dkt 69-3 at 108:115; U.C.A.

Dkt 13-3 at 20;

15. At caucus meetings, members of the Party, organized by neighborhood

19. By employing a process where the Partys candidates are selected by

Dkt 103-1 at 16;

Case 2:14-cv-00876-DN-DBP Document 168 Filed 09/23/15 Page 8 of 27

will comply with Partys candidate selection rules and processes.

23. The Partys nominating convention procedures require that delegates

24. Except for candidates running unopposed, delegates to the nominating

Dkt 13-3 at 23;

Dkt 13-3 at 24;

29. The Partys Constitution restricts participation in its primary election to

Dkt 13-3 at 25;

Case 2:14-cv-00876-DN-DBP Document 168 Filed 09/23/15 Page 9 of 27

voters who are registered Republicans.

Dkt 13-3 at 2628

Dkt 13-3 at 6786

Dkt 69-3 at 119:6124:7, 131:14-17,

Case 2:14-cv-00876-DN-DBP Document 168 Filed 09/23/15 Page 10 of 27

U.C.A. 20A-9101(12)(a); Dkt

Dkt 69-3 at 186:5189:17

Dkt 69-3 at 188:417

Case 2:14-cv-00876-DN-DBP Document 168 Filed 09/23/15 Page 11 of 27

Pursuant to Utah Code Ann. 20A-9-101(12)(e), the Utah

Dkt 69-3 at 155:7156:15

Dkt 13 at viii &

Dkt 69-3 at 207:3210:22, 214:8-12

56. In discovery, the State refused to answer questions regarding the

Dkt 69-3 at 69:371:19

57. In discovery, the State refused to answer questions regarding the