More Questions than Answers in Ruling on SB54 Lawsuit

LC5As expected, Federal Judge David Nuffer has ruled that part of the controversial state candidate nomination law – SB54 – is constitutional, and part of it is unconstitutional.

This ends the current State Republican Party lawsuit against SB54.

But as reported earlier, GOP state chairman James Evans still believes the “flawed” SB54 allows party bosses to define who can be a candidate under the Republican Party banner – and any candidate who takes only the petition-gathering route to the GOP primary ballot is automatically denied party membership – and so can’t run as a Republican.

That argument may be handled in a special legislative session before the January 2016 general session.

Or it may be dealt with in a separate, new lawsuit – although no one seems to know who would sue whom.

As he had talked about in previous court hearings, Nuffer ruled (page 33) Tuesday that SB54’s provision that a Qualified Political Party had to allow unaffiliated (independent) voters to vote in their primary is unconstitutional – for it violates the U.S. Constitution’s guarantees of “free association.”

But, Nuffer also ruled that SB54’s petition gathering route to a party’s primary ballot IS constitutional.

That would seem to be a blow to Evans’ constant drumbeat that allowing a candidate to get on the GOP ballot outside of the current delegate/convention route is unconstitutional, for it violates the same “free association” clause.

But Evans changed his tune late last month – saying he and his lawyers read part of SB54 to decide specifically how a party picks its candidates – “either or” by the convention route – means the party can choose only the convention route.

Since current GOP bylaws define a Republican as one who follows party bylaws, and since party bylaws currently only provide for the delegate/convention route, then by definition, says Evans, any candidate who takes a non-delegate/convention route (i.e., the petition-gathering path) can’t be a Republican.

And so they can’t run under the Republican Party banner in a primary election or a general election.

Now, Evans says he realizes that is not what the drafters of SB54 wanted, nor what the GOP-controlled Legislature thought it was passing in the SB54 compromise with the Count My Vote citizen initiative petition, nor what GOP Gov. Gary Herbert thought he was signing into law when he approved SB54 after the 2014 Legislature.

But, says Evans, that’s how the state GOP bosses see it.

In theory, the Utah Election Office could certify to each county clerk who will be on the June 2016 GOP ballot.

But if the office puts on a “Republican” candidate who only went through the petition-gathering route (the route that Nuffer says is constitutional), then indeed the state GOP would sue to get those names removed.

Or a GOP petition-gathering candidate could sue to get his name on the GOP primary ballot.

Or maybe the Legislature could try to fix SB54 in a special session or the general session (but any general session decision would come after SB54’s petition-gathering candidate filing deadline of Jan. 4).

What’s weird is that the CMV folks in their initiative petition did not require that a political party hold an open primary – that was put in by SB54’s legislative sponsors.

And that part was struck by Nuffer as unconstitutional Tuesday.

But the CMV’s petition-gathering route has been held constitutional by Nuffer.

Still, Evans says any GOP candidate who takes only the petition route is kicked out of the party – can’t run under the Republican Party banner.