Supreme Court may decide the fate of Utah’s dual-track candidate system on Friday

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Maybe Friday, but for sure on Monday, we will know if the five-year-old politically-bloody court battle concerning Utah’s SB54 is finally over.

At least over as far as the current federal case is concerned.

On Friday, the nine justices on the U.S. Supreme Court will meet in their weekly secret conference to discuss, and vote on whether to grant cert on the dual-pathway candidate law – which means the justices agree to hear the Utah Republican Party’s appeal of a 10th Circuit Court of Appeals’ upholding of SB54, or the highest court refuses to take the case – thus ending federal court appeals.

If the high court agrees to take the case, that means at least four of the nine justices want to decide the matter. It could take months before briefings are made and oral arguments scheduled on the case – then maybe more months before an official opinion is rendered by the high court.

If the case is not added to the high court’s calendar on Friday, we’ll know by Monday whether they decided to let a lower court’s ruling stand, or if they chose to kick the can down the road and will consider the case at a later date. 

If the justices refuse to hear the appeal, then the fate of SB54 falls back into Utah’s political arena – where it has bounced around since the 2014 Legislature first passed the law as a compromise between GOP legislators, Republican Gov. Gary Herbert, and the influential group of Utahns who started the first Count My Vote citizen initiative petition.

Over the years since, UtahPolicy.com has published dozens and dozens of stories and columns about SB54, and the bitter infighting that’s taken place inside the Utah Republican Party.

You can search through those stories at UtahPolicy.com.

A group of archconservatives inside the party’s Central Committee who fought SB54 – the dual-track candidate nomination Utah law – all the way to the U.S. Supreme Court has basically bankrupted the political organization.

Most Utah high court watchers, like Sen. Todd Weiler, R-Bountiful, believe the court won’t grant cert – mainly because the U.S. Supreme Court has ruled previously that states can set criteria on how a candidate makes it on the state-paid-for primary ballot.

Without the high court ruling in their favor – the Central Committee’s archconservatives will have lost once before the Utah Supreme Court, twice in federal district court of Utah, and now at two appeals courts.

Still, there is little doubt that the hardliners on the Utah Republican Party’s Central Committee will redouble their efforts at making internal party rules that seek to harm signature-gathering GOP candidates and favor convention-only candidates.

That was done in some legislative and county races in 2018.

The results weren’t good for the hardliners –  in each case, the SB54 signature candidates (who in some cases ALSO appeared before party delegates in convention) won their races handily.

Below is a short history of SB54. It’s a tortured account, which starts in the 2014 Legislature and, because of the constant opposition by a wing in the Central Committee, has basically bankrupted the majority party organization in Utah:

The 2014 Count My Vote citizen initiative petition effort was well on its way to making the ballot that year when CMV and GOP legislative leaders and Herbert reached a compromise – SB54.

Passage of SB54 that year ended the CMV petition drive but resulted in a series of lawsuits by the Utah Republican Party, whose bosses were not part of the compromise.

Basically, the law says a candidate for federal, state and county public office in Utah can get on his party’s primary ballot by, 1) gathering a set number of voter signatures in his district (or statewide), 2) by getting a set number of convention delegate votes (usually above 40 percent), or take both routes at the same time. Before SB54, only by winning enough delegate votes could a candidate get on the party’s primary ballot, or with a supermajority win the nomination at the convention, avoiding a primary altogether.

Here is a link to an explanation of SB54 put out by the Utah Elections Office.

Over the next several years after SB54 became law – in loss after loss in various courts – the party ran up half a million dollars in legal fees, paying very little toward them.

In short, the party became bankrupt – was bouncing checks around town – as some of the traditional big donors backed away from giving. Many of these folks liked SB54, supported Count My Vote, and didn’t want their donations going toward a lawsuit they opposed.

In the spring of 2017, the 4,000 or so state GOP delegates declined to elect a chairman who strongly supported the lawsuits, instead picking Rob Anderson, who said he wanted to end the lawsuits, settle debts, and get the state party back on track in electing Republicans to office, via SB54 or otherwise.

But the so-called “Gang of 51,” around 50 of the 180-member Central Committee, started calling “emergency” meetings of the Central Committee, offering rule changes and resolutions aimed at battling Anderson and punishing signature-gathering candidates, among other things. This group of hardliners made it abundantly clear they were going to continue the court fight – at that time headed to the 10th Circuit Court of Appeals.

They found a financial ally in millionaire software developer Dave Bateman of Entrata, who agreed to “take on” the party’s SB54 attorneys debt in return to giving him and a select few 51 members authority over the lawsuit.

In recent years, the 51 and others inside the party have tried to adopt rule changes aimed at harming signature-gathering candidates, stopping just short of setting up a process of kicking out of party membership any candidate who takes the signature route.

It may well now be the case – if they lose at the U.S. Supreme Court – this hardcore group will go forward with officially endorsing convention-only candidates, with their legislative supporters attempting to pass a new law that would help convention-only candidates by ballot “endorsement” banners or other measures.

However, SB54 has always been popular with voters. In March a year ago, the revised Count My Vote initiative for 2018 had 63 percent support among all Utahns.

The 2018 CMV version got more than enough signatures to make last November’s ballot. But a counter group – funded by Bateman – Keep My Voice – was successful in keeping Count My Vote off of the ballot by getting several hundred CMV signees in rural state Senate districts to take their names off of that petition – a move that was upheld by the Utah Supreme Court.So, citizens have never gotten to vote on either Count My Vote 2014 petition, nor the 2018 CMV petition version of SB54.

Over the last five years of court and personal infighting, many rank-and-file Utahns have gotten sick of what’s happening within their Utah Republican Party, as polling shows a majority support SB54.

Just one example of how off-track the 51/Central Committee concerns have become: In the 2018 elections, Republicans lost the 4th U.S. House District, three state House seats and one state Senate district, and got wiped out in Salt Lake County elections. Yet at the next Central Committee meeting, those losses were not even mentioned – the whole hours’ long meeting was taken up with squabbling over internal rules and setting up a special committee to investigate Anderson’s handling of SB54 issues, which the 51 don’t like.

A recent UtahPolicy.com poll finds that among rank and file Republicans, 64 percent said the SB54 battles make them LESS likely to support the party now than they once did.