Case 2:16-cv-00038-DN Document 84 Filed 04/14/16 Page 1 of 17

PARKER DOUGLAS (8924)

Utah Federal Solicitor
DAVID N. WOLF (6688)
Assistant Utah Attorney General
OFFICE OF THE UTAH ATTORNEY GENERAL
350 North State Street, Ste. 230
P.O. Box 142320
Salt Lake City, Utah 84114-2320
Telephone: (801) 538-9600
Facsimile: (801) 538-1121
E-mail: pdouglas@utah.gov
E-mail: dnwolf@utah.gov
Counsel for Defendant

IN THE UNITED STATES DISTRICT COURT

IN AND FOR THE DISTRICT OF UTAH, CENTRAL DIVISION

UTAH REPUBLICAN PARTY,

Plaintiff,

DEFENDANTS RESPONSE TO UTAH

REPUBLICAN PARTYS
MEMORANDUM IN RESPONSE TO
DOCKET ORDER 77.

UTAH DEMOCRATIC PARTY, a registered

political party of Utah,
Plaintiff and Intervenor,
v.
GARY R. HERBERT, in his Official Capacity
as Governor of Utah, and SPENCER J. COX,
in his Official Capacity as Lieutenant Governor
of Utah,

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

Judge David Nuffer
Magistrate Judge Evelyn J. Furse

Defendants.
Defendant Lieutenant Governor Spencer J. Cox (Defendant or Lt. Governor) submits
his Response to Utah Republican Party (URP) Memorandum In Response to Docket Order 77

Case 2:16-cv-00038-DN Document 84 Filed 04/14/16 Page 2 of 17

(doc. 80).
1. SB54, As Interpreted by the Utah Supreme Court in Utah Republican Party v. Cox,
2016 UT 17, Does Not Impermissibly Burden the Partys Constitutional Rights.
In Utah Republican Party v. Cox, the Utah Supreme Court determined that the plain
language of Utah Code 20A-9-12(d) requires a qualified political parties (QPP) to permit its
members to seek access to nomination for electoral office by either or both the signaturegathering method or the convention method.1 Therefore, to be a QPP, URP must allow its
members to choose to seek the Partys nomination by collecting signatures on a nominating
petition.
URP contends that Utah Code 20A-9-12(d)s provisions that allow prospective
candidates to choose to seek the Partys nomination for elected office by collecting signatures
violates its associational rights protected by the First Amendment. Specifically, URP complains
that the statute interferes with its right to control its internal procedures. Contrary to URPs
positon, the Utah Supreme Court concluded that Utah Code 20A-9-12(d) does not amount to
internal control or regulation of the party by the State.2 As a matter of Utah statutory
interpretation, the Utah Supreme Court found that Utah Code 20A-9-12(d) does not . . .
purport to mandate [to a political party] the adoption of any provisions in its constitution,
bylaws, rules, or other internal procedures.3
In this case, deferring to the Utah Supreme Courts interpretation of Utah law should give
this Court no pause. This Court previously rejected URPs contention that SB54 interferes with
its internal procedure and concluded that:
1 Id. 12.
2
Id. 6.
3
Id.

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Not all regulation of a partys internal processes is prohibited or

constitutionally questionable. Today, [n]early every State in the
Nation now mandates that political parties select their candidates for
national or statewide office by means of primary elections. As the
Supreme Court in Clingman stated:
To deem ordinary and widespread burdens like these severe would
subject virtually every electoral regulation to strict scrutiny,
hamper the ability of States to run efficient and equitable elections,
and compel courts to rewrite state electoral codes.4
Moreover, this Court, in accord with more than forty years of Supreme Court precedent,
has repeatedly recognized that: the State can constitutionally require the Party to select its
candidates through a primary election and the State can lawfully certify the Partys candidates
who receive the most votes in the primary election as the candidates to appear on the general
election ballot.5 The Utah Supreme Court also affirmatively noted its doubt as to whether the
Republican Party has raised any legitimate constitutional arguments that the State may not
regulate the election process and favor particular measures to increase access to the ballot.6 It is
against this backdrop that URP renews its arguments that the Party can unilaterally control the
process by which prospective candidates gain access to the primary ballot.
A. The Case Law Upon Which URP Relies Does Not Support The Partys Position.
URP cites Ray v. Blair, 343 U.S. 214 (1952) in support of its contention that its internal
rules override the States ability to certify candidates to the ballot through a signature-gathering
process. Ray is not on point. Ray involved certification of electors to proceedings for
nomination to federal Presidential and Vice-Presidential primaries. In Ray, the chairman of the
Alabama Democratic Party Executive Committee refused to certify Mr. Edmund Blair as a
4

First case, doc. 144, p. 18; doc. 75, p. 7 (citations omitted).

First case, doc. 144, p. 17; doc. 75, p. 7.
6
Utah Republican Party v. Cox, 2016 UT 17 at 7.
5

Case 2:16-cv-00038-DN Document 84 Filed 04/14/16 Page 4 of 17

candidate for presidential elector in the Democratic primary after Blair refused to sign an oath
that he would aid and support the nominees of the National Convention of the Democratic Party
for President and VicePresident of the United States.7
The Court in Ray ruled on a Twelfth Amendment claim concerning the selection of
presidential electors. The Supreme Court directly addressed the comparative associational rights
of political parties and candidates and concluded that a political partys exclusion of candidates
[for presidential elector] from a party primary because they will not pledge to support the partys
nominees is a method of securing party candidates in the general election, pledged to the
philosophy and leadership of that party.8 Ray merely stands for the proposition that a party may
condition the candidacy of a person seeking to be a member of a states electoral committee on
the partys decision that its electors must agree to pledge fealty to the ultimate nominee at
convention, not to the party.
The issue in Ray was whether Alabama could bar a political party to require a pledge to
support nominees of the national convention.9 That is not the issue here. Whether Utahs
Election Code prohibits political parties from administering a pledge or loyalty test is not in
dispute. The issue in this case is one of process, not ideology. The question presented here is
whether the State may certify candidates to the ballot who comply with the QPP signaturegathering process. URP has not objected to or otherwise sought to disqualify any prospective
candidate based on his refusal to sign the disclosure and certification forms identified in section
8.0 of URPs bylaws.

Id. at 215.
Id. at 227 (emphasis added).
9
Id. at 231.
8

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Moreover, in Ray, the partys ability to condition participation of the states electors was
by operation of rights conferred on the party under Alabama statute.10 The Ray case arose in the
context of the Twelfth Amendment and does not stand for the proposition that a candidate in
every primary must comply with the rules of the party,11 but rather, at best, only that
candidates who seek to be delegates at the national convention can be required to do so. And
that requirement in Ray was by operation of a statutory right granted to the party under Alabama
law.12 There is no analogous right or provision in Utah law.
URPs reliance on Cousins v. Wigoda is similarly misplaced. Like the court in Ray, the
Cousins court addressed issues related to the rights of political parties vis--vis the National
Political Party Convention. In concluding that the partys convention was the proper forum for
determining intraparty disputes as to which delegates should be seated, the Court observed that
[t]he States themselves have no constitutionally mandated role in the great task of the selection
of Presidential and Vice-Presidential candidates.13 The rationale in Cousins was not the
protection of the partys associational rights but, rather that [t]he Convention serves the
pervasive national interest in the selection of candidates for national office, and this national
interest is greater than any interest of an individual State.14
Moreover, twenty-five years after the Cousins decision and in a context far more
analogous to this case, the United States Supreme Court held that a state may require parties to

10

Id. at 219-20.
See URP Br. at 4 (quoting Ray, 343 U.S. at 230)
12
See id. at 219-20; 229-30; 231 (Where a state authorizes a party to choose its nominees for elector
in a party primary and to fix the qualifications for the candidates, we see no federal constitutional
objection to the requirement of this pledge.) (emphasis added).
13
Cousins v. Wigoda, 419 U.S. 477, 489-490 (1975).
14
Id. at 490.
11

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use the primary format for selecting their nominees, in order to assure that intraparty competition
is settled in a democratic fashion.15 The Supreme Court has further recognized: [A]s a practical
matter, there must be a substantial regulation of elections if they are to be fair and honest and if
some sort of order, rather than chaos, is to accompany the democratic process,16 Accordingly,
states have enacted comprehensive and complex statutory schemes governing elections. Each
provision of a state's election code inevitably affectsat least to some degreethe individual's
right to vote and his right to associate with others for political ends. These restrictions are,
however, generally permissible in light of the state's important regulatory interests, so long as
they are reasonable and non-discriminatory.
Duke v. Cleland, 954 F.2d 1526 (11th Cir. 1992) also does not further URPs cause. In
Duke, the Eleventh Circuit addressed whether political parties can exclude from participation in
party primaries candidates who hold views that are inconsistent with the party's ideology. The
court relied on political parties' associational rights to approve the use of state presidential
candidate selection committees to control candidate access to the party primary ballot.17 Under

15

Cal. Dem. Party v. Jones, 530 U.S. 567, 572 (2000)).

Storer v. Brown, 415 U.S. 724, 730 (1974).
17
See id. at 1533. The procedural history of Duke v. Cleland is tortured and complex. First, Duke claimed
that the actions by the State Committee and the Secretary of State violated his constitutional rights, and
requested a temporary restraining order, preliminary injunction, and permanent injunction pursuant to 42
U.S.C. 1983 to prevent the printing of the primary ballots. The district court denied the temporary
restraining order and the injunction. See Duke v. Cleland, 783 F. Supp. 600 (N.D. Ga.), aff'd, 954 F.2d 1526
(11th Cir. 1992). Duke then filed an amended complaint and asserted an additional claim under 42 U.S.C.
1983 that challenged the validity of the Georgia presidential primary candidate selection statute itself.
See Duke v. Cleland, 5 F.3d 1399 (11th Cir. 1993). The district court dismissed the case on the ground that
there was no state action, but this finding was overturned on appeal. The court of appeals found that the
candidate selection committee was an arm of the state and thus their decision constituted state action,
but the court could not decide the merits of the action on the record provided by the lower court. See
id. at 1404-06. On remand, the district court held that the candidate selection statute was constitutional,
and the Eleventh Circuit affirmed. See Duke v. Cleland, 884 F. Supp. 511, 517 (N.D. Ga. 1995), aff'd sub
nom. Duke v. Massey, 87 F.3d 1226 (11th Cir. 1996) (Duke III).
16

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Georgia state law, a committee comprised of the party's two leaders in the legislature and the
chairperson of the state party chooses which names are placed on the primary ballot.18 If all three
party members on the committee agree that a name should not be put on the ballot, the Secretary
of State does not print the name on the ballot.
Before the 1992 Georgia Republican Presidential Primary, David Duke, a former Ku
Klux Klan member and white supremacist, sought to participate in the election, but the party
committee voted to reject his attempt to gain access to the ballot.t.19 Duke claimed that his
associational rights, and the rights of his supporters to vote for him, were violated because the
Republican members of the Committee excluded [him] from the Republican primary ballot
because of his political beliefs. 20 The issue in the case was: Did the partys right to determine
the boundaries of its association trump Duke's right to associate with the party of his choice?21
The court concluded, Duke [had] no right to associate with the Republican Party if the
Republican Party ha[d] identified Duke as ideologically outside the party.
Unlike the Duke case, the URP has not objected to the inclusion of any candidate on the primary
ballot because of his ideology. Nor has any candidate sought placement on the ballot over the Partys
ideological objection. Instead, URP claims that it has a constitutional right to control the process
through which party members seek nomination, and that Utahs Election Code impermissibly regulates
the Partys internal procedures. Contrary to URPs assertions, however, Duke does not support the
Partys contention that the State must defer to the Partys internal procedures when creating a process
18

See Duke, 954 F.2d at 1533.

See id. at 1527.
20
Id. at 1530. The Georgia Republican Party Chairman, Alec Poitevint, admitted that the party denied
Duke because of his political views: 'There is no room for disciples of Hitler on the Republican
presidential ballot.' Duke, 5 F.3d at 1404 n.5. 1993).
21
See id.
19

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through which candidates access the ballot. In contrast to URPs positon, the party excluded Duke
without resorting to the party's internal political processes.22 The exclusion took place, by operation
of Georgia statute, before any party members were involved (except the three party leaders).
The Duke case does not support URPs argument that SB54s provisions interfere with party
autonomy. Georgias statutorily defined procedure enabling state officials to remove party
candidates does not protect the party's autonomy. Rather, such a statute infringes on that
autonomy by allowing three party leaders to circumvent the wishes of the majority of the partys
members.
Under Duke, a party can deny primary ballot access to a presidential party primary by the
vote of three party bosses if invested with that power under state law. Of course, no such grant of
authority exists under Utah law. Unlike Georgia, Utah law does not provide Party leadership
with the right to remove candidates who are otherwise properly certified to the ballot.
B. The QPP Provisions Do Not Run Afoul of the Unconstitutional Conditions Doctrine.
URP contends that [t]o qualify as a QPP, the URP must give up its First Amendment right to
23

control the process by which it selects its nominees for public office.

URP employs circular reasoning

based on a false assumption to arrive at its preferred conclusion. URP unilaterally proclaims it has a First
22

As Judge Kravitch noted in dissent, if the associational rights of the political party permitted the
exclusion of candidates from a primary ballot, the very purpose of a primary would disappear. Duke,
954 F.2d at 1539 (Kravitch, J., dissenting). In conclusion, she summed up the real motivation behind the
party's actions:
The Republican Party of Georgia and the state seek to exclude Duke from
the primary ballot because they believe that the party will suffer
embarrassment and adverse publicity by virtue of his candidacy for the
Republican nomination. No political body, however, has a constitutional
right to freedom from embarrassment ....
Id. at 1539.
23

Doc. 80, p. 6.

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Amendment right to control the process through which candidates seek the Partys nomination.
Based on this false assertion, URP then claims that the State cannot condition URPs choice to
be a QPP on relinquishing this self-proclaimed constitutional right.
As previously explained, there is nothing unconstitutional about a process that allows
prospective candidates access to the primary ballot by collecting signatures. This Court has
already affirmed the constitutionality of the signature gathering process contained within Utahs
Election Code.24 And a myriad of Courts uniformly recognize that a state has a legitimate
interest in requiring a showing of a significant modicum of support before it prints on the state
election ballot the name of a political party and its slate of candidates.25 The [Supreme] Court
has clearly upheld requirements that a request for ballot access be supported by some significant
number or percentage of petitioners.26 Therefore, it is not unconstitutional for the State to
require candidates to show the requisite support by collecting signatures in order to access the
ballot.
URPs unconstitutional condition argument also ignores the fact that both the RPP and
QPP routes allow candidates to seek the Partys nomination by collecting signatures. By
24

See doc. 75.

Arutunoff, 687 F.2d at 1378.
26
Libertarian Party of Florida, 710 F.2d at 793(citing Storer, 415 U.S. at 740 (5% requirement not
facially unconstitutional); American Party of Texas, 415 U.S. at 783 & n.15, 78889, 94 S.Ct. at 1307 &
n.15, 13091310 (upholding statute imposing on minority parties lenient 1% requirement which was
coupled with other somewhat burdensome requirements, and requiring independent candidates to obtain
signatures of 3% or 5% depending on office); Jenness, 403 U.S. at 432, 442, 91 S.Ct. at 1976 (5% of
those eligible to vote in previous election is constitutional); see also Swanson, III v. Worley, 490 F.3d 894
(11th Cir. 2007)(finding Alabamas statute requiring signatures from 3% of electors who cast vote for
Governor in last election constitutional); Cartwright v. Barnes, 304 F.3d 1138, 1141-42 (11th Cir.
2002)(reaffirming constitutionality of Georgias 5% signature requirement); Rainbow Coalition of Okla.
v. Oklahoma State Election Bd., 844 F.2d 740, 741-42, 744 (10th Cir. 1988)(upholding Oklahoma statute
requiring signatures of 5% of the number of votes cast in the most recent election); Rogers v. Corbett, 468
F.3d 188, 195 (3rd Cir. 2006)(upholding Pennsylvania statute requiring candidate of minor political party
to obtain signatures of 2% of votes cast on last election).
25

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choosing to become an RPP, URP candidates would seek the Partys nomination by signature
gathering only; URP candidates could not access the primary ballot by way of the Partys
convention.27 This does not present an unconstitutional condition, because URP does not have
a constitutional right to nominate its candidates by convention. [T]he State may require
political parties to use the primary format for selecting their nominees.28 Thus, the State would
be well within its rights to limit access to the primary ballot to signature gathering identified for
RPPs. Providing QPPs with the additional choice to nominate candidates through the Partys
convention does not render the statutory process unconstitutional.29 As the Utah Supreme Court
recognized:
The statute does not require the Republican Party to seek certification
as a qualified political party, and it does not purport to mandate the
adoption of any provisions in its constitution, bylaws, rules, or other
internal procedures. A registered political party that chooses to
function as such incurs no obligation under section (12)(d).30
That the signature gathering requirements contained in section 20A-9-408 may be
unconstitutionally restrictive if QPP candidates could not utilize the Partys convention to access
the ballot does not change the analysis. URP has confused the constitutionality of signature
requirements in the context of evaluating reasonable ballot access with the assessment of the
scope of the Partys associational rights at issue in this motion. This Court has already
determined the signature requirements found in Section 408, coupled with the access provided
through the partys convention, constitute reasonable access to the ballot.31 Likewise, the Court

27

See Utah Code 20A-9-403.

Doc. 170, p. 16.
29
See doc. 75.
30
Utah Republican Party v. Cox, 2016 UT 17, 5.
31
See doc. 75.
28

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also found the RPP provisions contained in 20A-9-403, including its signature gathering
requirements, to be constitutional.32
And finally, the unconstitutional choice which this Court found to exist with respect to
the unaffiliated voter provision contained in Utah Code 20A-9-101(12)(a) is no longer at issue.
The forced association that accompanied the States requiring the party to open its primary to
unaffiliated voters, is no longer present.33 Instead, URPs Complaint when distilled to its
essence, is that a partisan ballot open only to those voters chosen by the party itself, nonetheless
burdens parties associational rights because a candidate may seek the partys nomination against
the wishes of the partys leadership.34 However, URP does not possess a First Amendment
right to dictate the process through which its members seek the nomination. The Partys attempt
to exclude members of its own party to collect signatures and, thereby, seek the Partys
nomination in a primary election is not a right protected under the First Amendment.
2. URP Statement That it Will Not "Comply With The Requirements of the QPP
Statute as Confirmed in [The] Opinion," Utah Republican Party, 2016 UT 17, 11,
Is Contrary to its Prior Position.
The Utah Supreme Court expressly noted that:
[C]ounsel for the Republican Party in this case made the following
statement to the federal district court . . .: If state law says that we
have to allow both routes and if that is what the Supreme court
decides and if we have elected to be a QPP, then we would have to
figure out a way how to change our constitution and by-laws to
conform the state law.35

32

Doc. 170, p. 14; Doc. 207, p. 30.

See doc. 215 1-3 (declaring the unaffiliated voter provision unconstitutional as applied to URP.)
34
Alaska Independence Party v. Alaska, 545 F.3d 1173, 1179 (9th Cir. 2008).
35
See also February 4, 2016 hearing transcript at 44:4-8 (Doc. 42).
33

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At the February 4, 2016 hearing before this Court, counsel for the Republican Party further
confirmed that the reason that we brought this case and the reason that we're trying to expedite
[an answer to the first certified question] . . . is we want a responsive answer so that we can
comply with the law, whatever the law requires . . . .36 After having twice confirmed that URP
would comply with the Utah Supreme Courts clarification of a QPPs obligations under the
statute, URP now asserts that it will not comply with the QPP requirements as clearly established
by the Utah Supreme Court. URP should be required to honor and abide by to its prior
representations to this Court or be estopped or sanctioned for contempt. As in all adversarial
proceedings, a party should not be allowed to take contrary positions as such practices thwart the
substantive and procedural integrity of the judicial process.
3. There Is No URP Rule, Regulation, Procedure, Bylaw or Other Provisions Which
Expressly Prohibits, Limits, or Penalizes A Member From Using the Signature
Gathering Process.
At the hearing held on February 4, 2016, URPs counsel admitted that the Partys
Constitution and Bylaws do not exclude from Party membership those members who chose to
collect signatures to access the ballot:
THE COURT: I've got more questions for you. You quote some
provisions of the party constitution bylaws in the complaint. And
let's see. Is it the bylaws? Yeah. The constitution bylaws in
Paragraph 18. Now, Mr. Wolf raised a hypothetical that if you -that it might be that the Republican Party would have a provision
that if you seek the nomination gathering -- or signature gathering
right, you can't be a member. Nothing you have in your
constitution and bylaws says that now.
MR. TROUPIS: No. It simply says you have to comply with the
rules.
THE COURT: And the rules are that you only have a convention
route; is that right?
36

Id. at 43:4-8 (Doc. 42).

12

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MR. TROUPIS: That's correct.37

URP contends that its rules only permit URP members to seek the partys nomination
via convention.38 URP similarly claims that [o]nly Republican candidates who have properly
filed for elected public office as required by law and meet the URP Bylaws shall be considered at
Convention.39 URPs statements do not address the issue. The Lt. Governor agrees that URPs
rules establish a process for its members to seek the Partys nomination by participating in the
Partys convention. However, there is no rule, regulation or provision within URPs bylaws or
constitution that preclude, prohibit, prevent or penalize a member from utilizing the signature
gathering process to seek the Partys nomination.
While the First Lawsuit was pending, URP amended its Constitution and Bylaws.40
URPs Constitution provides 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, and membership may be further set forth in the Utah Republican Party Bylaws.41
URPs Bylaws do not further define the criteria for membership in the Party. URPs Bylaws
require that:
Candidates who wish to run for any federal or statewide office shall
sign and submit a certification that they will comply with the rules and
processes set forth in the Utah Republican Party Constitution and these
Bylaws and a disclosure statement to State Party Headquarters at least
30 days prior to the State Party Convention. The disclosure statement
shall specify either: (1) "I have read the Utah Republican Party
Platform. I support that Platform and accept it as the standard by
which my performance as a candidate and as an officeholder should be
37

February 4, 2016 Transcript at 43:14-44:2 (Doc. 42).

Doc. 80, p. 2 (emphasis added).
39
Id. at 19.
40
Compare doc. 69-1, p. 1-9 and 69-2, p. 1-11 with doc. 177-1, p. 2-13 and 177-1, p. 15-23.
41
Doc. 177-1, p. 2, Art. IC.
38

13

Case 2:16-cv-00038-DN Document 84 Filed 04/14/16 Page 14 of 17

evaluated. I certify that I am not a candidate, officer, delegate nor

position holder in any party other than the Republican party." Or (2) "I
have read the Utah Republican Party Platform. Except for the
provisions specifically noted below, I support that Platform and accept
it as the standard by which my performance as a candidate and as an
officeholder should be evaluated. I certify that I am not a candidate,
officer, delegate nor position holder in any party other than the
Republican party."42
Conspicuously absent from URPs Bylaws is any restriction on candidates collecting
signatures to access the primary ballot. All the Bylaws require is that a candidate who chooses to
seek the Partys nomination through the Partys convention agrees to comply with the procedures
governing the Partys convention and provide the requisite disclosure statement. And candidates
who refuse to sign the disclosure statement are not expelled from the Party. Instead, [s]hould
any candidate fail to submit the Disclosure Statement, the Party Chairman will announce this
failure immediately prior to balloting for that candidate's office.43
Thus, URPs claim that Utah Code Ann. 20A-9-101(12)(d) unconstitutionally interferes
with the Partys right to define its membership is not correct, in part, because URPs membership
requirements do not conflict with state law. Accordingly, allowing QPP members to exercise
their choice to seek their Partys nomination by collecting signatures, as expressly provided by
Section 101(12)(d), does not conflict with URPs definition of its membership or otherwise
interfere with URPs internal procedures. And URPs curious reliance on its incorporation of
Roberts Rules of Order does not change this result.

42

Id., p. 22, 8.0.

Id. 8.0B; see also Evans depo. Doc. 69-4, 54:1-5 (acknowledging if they choose not to sign it, then
the consequence would be me communicating that to those delegates that this particular candidate has
chosen not to sign the Candidate Disclosure.)
43

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4. Roberts Rules of Order Does Not Provide a Process Through Which the Utah
Republican Party May Revoke a Person's Membership for Seeking the Partys
Nomination by Collecting Signatures.
Article 11.0 of URPs Bylaws identifies the scope of Roberts Rules of Order:
The rules contained in the current edition of Roberts Rules of Order
shall govern all meetings of the Party except to the extent they are
inconsistent with the Constitution and Bylaws and any special rules of
order the Party may adopt.44
Thus, contrary to URPs assertion, Roberts Rules of Order do not govern procedures of the
URP in all areas not specifically addressed in the Partys Constitution or Bylaws. 45
While it is true that URP may hold a disciplinary proceeding to expel a member whose
conduct may injure the good name of the organization, URP has not established a process to
expel party members for utilizing their statutory right to seek the Partys nomination by
collecting signatures. If a member is disruptive at meetings, the member may be removed from
the meeting pursuant to Roberts Rules of Order. If a party member is engaged in unethical
behavior or has committed crimes of moral turpitude that may damage the Partys reputation, the
Party may initiate proceedings that could result in the members expulsion form the Party. But
the Party has not presented any evidence that it has placed members on notice that they will be
expelled from the Party if they seek the Partys nomination by collecting signatures.
The Partys suggestion that it need not provide notice to its members because it is a
private organization and, thus, its members do not enjoy the protections of due process
enumerated in the Bill of Rights is not correct. lf political parties were truly private
organizations, they could exclude whomever they wished from political participation--a result
44
45

Doc. 80, p. 16 (emphasis added).

See id (emphasis added).

15

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that would conflict with the "White Primary Cases" in which the Court protected racial
minorities' right to participate in party primaries. Similarly, in Morse v. Republican Party,46 the
Court relied on the "White Primary Cases" to find that a political party is a state actor when it
delegates authority to a party to select candidates through a party convention.47 Therefore,
URPs contention that its associational rights are so broad as to allow party leadership to exclude
whomever they wish from the ballot is contrary to established precedent.
5. URP Concedes That It Has Not Commenced Any Membership Revocation
Proceeding.
URP states that if a party member fails to satisfy the party requirement to obtain at least
40% of the convention votes for that office, the member would be barred from seeking the
nomination.48 URPs statement is directly contrary to the ruling of the Utah Supreme Court. The
Utah Supreme Court held that a QPP member is permitted to seek the Partys nomination by
collecting signatures and the choice of which nominating method to use belongs to the member,
not the Party.49 URPs unsubstantiated assertion is also contrary to the Lt. Governors assurance
that he will certify QPP candidates to the ballot who comply with the signature gathering process
over the Partys objection. However, URP does not control access to the ballot through signature
gathering. Thus, the Partys admission--that it has not initiated any proceeding to revoke
membership of those prospective candidates who choose to seek nomination by gathering
signature--confirms the Utah Supreme Courts conclusion that the question of whether URP
remains in compliance with the QPP statute is not ripe for review because the Party hasnt

46

517 U.S. 186, 198 220-222, 116 S. Ct. 1186, 1195-96, 1207-08 (1996),
Id.
48
Doc. 80 at 49.
49
Utah Republican Party v. Cox, 2016 UT 17 at 4, 5.
47

16

Case 2:16-cv-00038-DN Document 84 Filed 04/14/16 Page 17 of 17

actually prevented its members from seeking nomination by collecting signatures.50 This dispute
is still not ripe because URP has not objected to any candidate qualified for the ballot through the
signature-gathering process. Nor has the Party tried to revoke any such candidates membership.
Until such a concrete action occurs, the same justiciability problems that led the Utah Supreme
Court not to answer the second certified question still exist here.
6. Other Than the Relief Requested, There Is No Substantive Difference Between the
First and Second Causes of Action in the URPs Complaint.
The Lt. Governor agrees with URPs assertion that the only substantive difference between
the First and Second Causes of Action is the relief requested.51
CONCLUSION
For the reasons stated above, as well as those contained in Defendants memoranda in
opposition to Plaintiffs partial motion for summary judgment on paragraphs 73(b) through
(g)(doc.49), Defendants respectfully request that the Court grant Summary Judgment in favor of
the Lt. Governor and dismiss Plaintiffs claims, with prejudice.
DATED: April 14, 2016.

OFFICE OF THE UTAH ATTORNEY GENERAL

/s/David N. Wolf
PARKER DOUGLAS
Utah Federal Solicitor
DAVID N. WOLF
Assistant Attorney General
Counsel for Defendant Spencer J. Cox,
Lt. Governor of the State of Utah
50
51

Id. at 11.
See doc. 80, p. 50.

17