New GOP Lawsuit Against SB54 Could Cause Chaos in 2016 Election (Updated)

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For weeks, the Utah media have been reporting about a “friendly” lawsuit to be filed by the Utah Republican Party and the Utah Elections Office in the state Supreme Court seeking clarification of SB54, the state’s new candidate dual-route to his party’s primary law.

But last Friday the state GOP filed its own suit – without the state – in federal court.

Not what was anticipated at all.

Tuesday, Mark Thomas, deputy to Lt. Gov. Spencer Cox and director of the State Elections Office, told UtahPolicy that he has no problem with the party’s actions, but was caught off-guard by the lawsuit.

In part, said Thomas, the state GOP went its own way because they wanted to bring up different issues than the state was looking at.

But GOP chairman James Evans has a very different story. Evans says his attorneys were talking to the Attorney General’s Office all along.

And both agreed that the party would file a federal lawsuit, the federal judge would then certify several questions to the Utah Supreme Court, and both cases would move quickly through the system.

In the lawsuit, the party explicitly points to SB54’s requirement that, in practice, could mean some GOP candidates would have to gather more than 5 percent of qualified voters’ signatures.

The lawsuit cites a U.S. Supreme Court ruling that says no more than 5 percent of signatures can be required – more would be an undue burden on a candidate.

But the state GOP going it alone, and going to federal court, could well mean Utahns won’t get a decision on SB54 “for up to a year,” said Thomas.

And that could add weight to the party’s request, in its new lawsuit, that a federal judge grant a temporary injunction against SB54.

If given, that would mean the new law wouldn’t apply to the 2016 election cycle.

In any case, if SB54 is kicked out of the 2016 cycle it could put at risk many Republican incumbents – especially several state senators and representatives – who have strongly backed SB54.

For they would have to go only before party delegates to get on the GOP primary ballot – which could prove difficult.

Particularly for Sen. Curt Bramble, R-Provo.

Bramble is the author of the bill – and he’s being challenged in his District 16 by former Rep. Chris Herrod, who says he is only going the delegate/convention route.

Bramble is gathering signatures, as allowed by SB54, and says he will also go to the District 16 convention delegates – who will take their votes in the Utah County GOP Convention because the district falls wholly in the county.

The trouble is, the Utah County GOP’s top-boss committee recently decided that anyone taking the signature route violates party rules, and so can’t run as a Republican.

If a federal judge throws SB54 out – or delays its implementation for the 2016 election – then Bramble and other signature-route candidates could be in real trouble.

Of course, Bramble et al. could go to court themselves, asking to be placed on the GOP primary ballot by a judge.

And in a press release late Tuesday, Lt. Gov. Spencer Cox says his office will certify to the primary ballot any candidate who meets the signature-gathering requirement unless a judge orders him not to.

 Still, the question remains: Who knows what will happen when?

Much of the new lawsuit’s complaint comes over a comment made by an associate AG in a previous federal lawsuit recently settled over SB54.

The complaint says the AG agreed that the party can decide, for itself, whether to allow a signature-gathering candidate on the ballot, or only allow a candidate who goes through the traditional delegate/convention route to the primary ballot.

That is a total misreading of what the AG meant, says Thomas.

But in any case, said Thomas, an assistant AG misspeaking in court can’t give up SB54 authority – and that authority lies with the Utah Election Office.

“And we have made it clear” from the very beginning of the SB54 questions that the law means a candidate can decide which route he takes to the primary ballot, not a political party, Thomas told UtahPolicy.

Thomas and Evans met late last year with both the House and Senate GOP caucuses and declared a cease-fire.

The two groups would together go before the Utah Supreme Court to decide one central issue: Can a party or candidate determine the candidate’s route to the party primary?

Evans says that critical question will go to the Utah Supreme Court via a federal judge’s request.

“We hope that will be answered soon,” said Evans. Then the federal case will move forward on the percent of signatures required and other issues – with Evans hoping the federal court will issue an injunction against SB54.

Meanwhile, Cox and Thomas say any candidate who gets the required number of signatures on his petition will be certified by their office to his party’s June primary ballot.

The state pays for the primary election, and can legally say who goes on the ballot, claims Thomas.

But whether SB54 will apply in 2016 is back up in the air, now before a federal judge and, hopefully, the Utah Supreme Court.