GOP Mulling Lawsuit Over ‘Count My Vote’ Compromise

Utah Republican Party leaders tell UtahPolicy that they are considering suing the state over SB54, the Count My Vote citizen initiative petition compromise that provides a dual-track process to candidate nominations.


It’s not the dual-track that state party chair James Evans finds illegal.

Rather, it is the requirement in SB54 that political parties have an open primary.

The state GOP has a closed primary today.

Several court cases, including one in Idaho, rule that the government can’t force a political party to open its primaries, says Evans.

Thus, there are legal problems with SB54 from the get-go, Evans believes.

That may be the case if the compromise law, sponsored by Sen. Curt Bramble, R-Provo, forced all political parties to have open primaries.

But Bramble and attorneys for the Legislature and CMV came up with a real slick alternative in SB54 that has not been widely discussed in all of the media hype about the compromise.

SB54 doesn’t FORCE the Utah Republican Party to have an open primary. (You can read SB54 here.)

In fact, the state GOP can CHOSE to keep their single-track, caucus/delegate/convention system exactly as it is today.

But if GOP leaders do chose to opt out of the dual-track, open primary system, then their candidates, on the November general election ballot, CANNOT come under a banner that says Utah Republican Party.

In other words, if you don’t follow the “grand compromise,” dual-track process outlined in SB54 – complete with an open primary where any registered Republican AND any registered independent can vote for the GOP nominee — then on the final November general election ballot Republican candidates will be listed by their name, but with no party affiliation next to their name.

This, of course, is a pretty big hammer.

Utah is overwhelmingly Republican.

And it is general assumed – and university political science experts maintain – that many conservative Utah voters the candidates personally.

Conservatives just check the box next to the GOP candidate in any race – if they don’t check the straight-ticket box GOP at the top of every general election ballot.

So, if you have a Democratic Utah House or Senate candidate on the November ballot, and then some other guys in the race, maybe a small “I” independent or a 3rd party, like Constitutional, and then a guy with no party affiliation next to his name, how do you know who the Republican is in the race?

If many Utahns are used to just voting for the GOP candidate in the final election, and there is no GOP candidate listed, that could be real trouble for the Republican Party.

So, instead of facing that uncertainty, the thinking goes, state GOP leaders will voluntarily join up for the SB54 compromise, dual-track process.

That dual track allows a candidate to go through the normal caucus/delegate/convention party system. Or a candidate can decide (by Jan. 1, of the election year) to gather a set number of voter signatures in his district (or statewide for offices like U.S. Senate and governor) and go directly to the party primary ballot.

And part of that process is a required open primary.

SB54 says that by Sept. 30 in the year preceding the next general election – in other words, Sept. 30, 2015 for the 2016 election cycle – each party in Utah that wants to be a “qualified” party must in writing agree to the dual-track process and an open primary.

You don’t have to be a “qualified” party. But if you are not, then on the following general election ballot no candidate will be listed under your party name.

State lawyers believe that the “opt-in,” “opt-out” provisions in SB54 will legally satisfy the open primary part of the bill.

One Capitol Hill legal source told UtahPolicy that deflecting a possible lawsuit wasn’t the only reason for the going the “qualified” party, opt-in-opt-out legal route, but was considered as part of the bill drafting.

It made sense, considering that the original SB54 was a tricky attempt to force political parties to open up their caucus/convention nominating system – and if they didn’t then they would face the exact language of the Count My Vote citizen initiative petition.

So, the compromise SB54 that finally passed – and caused the CMV bosses to stop their petition process – follows the same carrot-and-stick approach: If the Utah GOP doesn’t accept the dual-track process, complete with an open primary, then its candidates can’t be listed under the Republican Party banner on the general election ballot.

Finally, there are a few quirks in SB54 of note:

— Under current law, after voter signatures are handed in to county clerks for a citizen initiative petition, opponents of that petition can try to get people who signed it to take their names off.

But signees of the candidate petition process can’t take their names off once they’ve signed – so no shenanigans with a candidate’s opponents trying to decertify his race by getting signees to take their names off.

— If you don’t follow the dual-track process, your party convention may “endorse” candidates, but those endorsements can’t be on the general election ballot.

— If you take the candidate petition route to the party primary, you can’t pay petition-gathers. They have to be volunteers.

That will make it a lot more difficult for a statewide candidate, for example, to gather the 28,000 required signatures to make his party’s primary ballot.

— The dual-track process applies to county elected positions. The CMV petition only applied to federal and state candidates.

— Political parties who take the dual-track process must also allow for absentee delegate voting in the March neighborhood caucuses and provide a way for a delegate who will miss the convention to be replaced with a delegate who can attend.