The Utah Elections Office will not kick any Republican candidates who gather signatures off the primary ballot, even though the party has a rule saying any candidate that does just that is no longer a Republican in Utah.
Republican lawmakers held a conference call on Friday to discuss the conflict between party rules, which say a candidate automatically loses their party membership if they gather signatures, and state law, which requires the Utah GOP to allow candidates to gather signatures as a Qualified Political Party (QPP). There is a fear that the bylaw’s conflict with state law has the potential to force the entire Utah GOP off of the ballot.
A memo from the State Elections Office provided to Republican lawmakers on Friday says a political party will not be allowed to remove candidates from the ballot if they gather signatures as state law trumps party rules if the two are in conflict.
“The law clearly states that a QPP must allow candidates to choose from a dual path to the ballot: gathering signatures, attending convention, or both,” says the memo from Elections Director Justin Lee. “Any attempt by a party to remove an otherwise legally qualified candidate from the ballot will be rejected by our office.”
In 2014 the legislature passed SB54 which says if a party wishes to continue using their convention to nominate candidates, they must also allow candidates to gather signatures to be on the primary ballot. Otherwise, parties can only use the signature route.
In their quarterly meeting earlier this month, the Utah GOP Central Committee voted to ask Gov. Gary Herbert to add a repeal of SB54 to the special legislative session held earlier this month. Gov. Herbert refused to do so. In response to that request, Herbert asked the elections office to clarify for candidates how they would deal with the contradiction between the party’s rules and state law.
The offending bylaw, known as “Bylaw 8,” was passed in late 2017 by a group of hardliners on the GOP’s Central Committee who hoped to revoke the party membership of a signature-gathering candidate to give them another chance to file a lawsuit against SB54. Earlier this year the Supreme Court refused to hear the party’s appeal of a lower court ruling against their first lawsuit against the dual-track nominating system. Essentially, the bylaw was designed to give Republicans another bite at the legal apple. That’s unlikely to happen as GOP delegates replaced many of the hardline members of the State Central Committee earlier this year, effectively stripping them of control.
After the bylaw was adopted at an unusual emergency meeting of the State Central Committee in 2018, many Republicans in the legislature were worried that the newly passed rule would jeopardize every GOP candidate. Then-party chair Rob Anderson refused to send the rule to the state elections office, an action for which he was censured by the State Central Committee. The elections office assuaged fears by announcing they would simply ignore the rule because the party had already informed them they would operate as a QPP that year.
The party told the state elections office earlier this year they would once again operate under the QPP rules for the 2020 election despite the offending bylaw.
The party narrowly failed to revoke Bylaw 8 twice this year, leading to the current legal conundrum.
Some worry that conflict might cause the Republican Party to lose its status as a QPP, which might result in all Republican candidates being kicked off of the ballot or forcing them to run as independents. That would be a massive blow to Utah’s dominant political party, as being the Republican nominee is a built-in advantage for any candidate. The memo from the elections office says state law is “silent as to what happens if a party fails to follow the requirements of a QPP.”
The memo does acknowledge that state officials are whistling past the graveyard with their decision to ignore the GOP bylaw, noting that only a court order or a change in the law would change their position.
“Although judges have been historically averse to removing candidates from the ballot, it is impossible to know with certainty whether a judge could remove a party’s QPP status. In short, while our office can ensure ballot access for either ballot path within the confines of the current law, there is always a possibility that a judge could reach a different conclusion,” the memo says.
It’s not known if a group, political party or candidate has plans to mount a legal challenge to the GOP’s status as a QPP. But, if that were to happen, it could throw the 2020 election into chaos.