Could the Legislature Gut SB54 this Year?

Utah State Capitol 10Could the 2016 Legislature repeal or gut the current SB54, the dual-pathway for a candidate to make his party’s primary ballot?

A UtahPolicy analysis shows it’s possible, but it would take at least two current GOP House members who voted for the bill two years ago to change their minds – break their promise, if you will, to the Count My Vote citizen petition supporters.

House Speaker Greg Hughes, R-Draper, told UtahPolicy Tuesday afternoon that “I’m a man of my word” and would oppose any attempt to repeal or drastically change SB54, especially changing the law to allow the political party to decide whether a candidate could take to petition route, the delegate/convention route, or both.

That was the change freshman Rep. Justin Fawson, R-North Ogden, attempted Tuesday with his substitute to HB69, a bill sponsored by Rep. Fred Cox, R-West Valley, that initially made minor changes to the dual-path law.

If one counts the GOP House members still in office this year, and are presumed to be running for re-election in 2016 and so have to answer if they change their votes on SB54, then there are 28 Republicans in the new law’s column.

Assume that all 12 House Democrats favor SB54 – their state party officially endorses it, and a variety of Democratic House members have spoken against the Utah Republican Party’s court challenges to SB54.

Then there are 40 votes not to repeal the law, nor make significant changes to it.

Thirty-eight votes are needed to pass a bill in the House.

The anti-SB54 House Republicans are two votes short.

Thursday, GOP Gov. Gary Herbert, in answer to a UtahPolicy question, told his monthly KUED Channel 7 press conference that he favors letting the party’s challenge in the courts play out.

Seven Utah House Republicans appeared Tuesday to switch their votes on SB54.

The seven voted for SB54 two years ago, yet voted not to circle Fawson’s substitute bill and have an immediate vote on it.

Two of the seven are in House GOP leadership, House Majority Assistant Whip Brad Wilson, R-Kaysville, and House Budget Chairman Dean Sanpei, R-Provo.

Wilson told UtahPolicy that he voted against holding Fawson’s substitute only because he wanted the debate to take place then.

Wilson said: “I’m not likely” to change his vote on SB54 and favor Fawson’s substitute – which would allow political party’s, not candidates, to decide whether to take the petition-signature route or not.

The state Republican Party doesn’t want to let any petition-signature candidate get on their primary ballot – even though taxpayers pay the $3 million primary election costs.

Sanpei told UtahPolicy that he, too, wanted Fawson’s substitute to be debated immediately. “I’m not in that (the Fawson) camp,” Sanpei said.

The others voting not to circle Fawson’s substitute – but voted for SB54 two years ago — were Reps. Jack Draxler, R-North Logan, who is not running for re-election; Steve Eliason, R-Sandy; David Lifferth, R-Eagle Mountain; Kevin Stratton, R-Orem; and John Westwood, R-Cedar City.

Lifferth is already on record as saying he voted for SB54 back in 2014 believing it was unconstitutional, but he wants a law in place that could be challenged in the courts to decide the autonomy of political parties once and for all.

UtahPolicy didn’t count Draxler or Lifferth as any part of the 28 GOP Republicans who would need to change their SB54 votes since Lifferith basically already has and Draxler doesn’t have to answer to his voters again.

The Utah Republican Party is now in federal court for the second time challenging SB54. And Federal Judge David Nuffer has sent a critical element of SB54 to the Utah Supreme Court for a decision.

And Hughes and Herbert say let that legal process play out.

The Utah County Republican Party has been especially aggressive in fighting SB54.

It’s main governing group recent voted to stop candidates from pursuing the petition gathering route a place in its nomination process – although the Utah Elections Office says it will put on the primary ballot any candidate who qualifies under the petition route, regardless of what his or her party may say.

There has been some talk on Capitol Hill that SB54 should be put on the 2016 ballot by lawmakers – what’s called a nonbinding referendum vote.

Hughes says he’s against that at this point – best to just keep the SB54 promise with Count My Vote and let the courts rule as they may this year.

Later, depending on the courts’ rulings, SB54 can be revisited, says Hughes.

However, Hughes acknowledged that the House’s makeup today “is really different than two years ago” when SB54 passed the House 49-20.

“You have three groups in the House,” said Hughes: Those new members who didn’t vote on SB54 at all, those who voted against SB54 two years ago, and those who voted for SB54 and presumably will stand by their promises to voters and the CMV backers and petition signees – more than 100,000 folks when Count My Vote dumped their signature campaign in light of the SB54 compromise.

Hughes’ comments actually got this reporter thinking, and to tally a recount of SB54 as it may stand in the current 75-member House – which shows, at least for now, 40 votes not to accept Fawson’s substitute (which as of Thursday evening sat circled on the House’s 3rd Reading Calendar), awaiting further action.

Finally, a sideline note: While Fawson’s motion to substitute is perfectly legal under House rules, Cox’s HB69’s public hearing in a House standing committee never dealt with gutting the dual-pathway – since the original HB69 didn’t propose that change.

Thus, if the House ultimately passes Fawson’s substitute, there was no public hearing in the House of going back on the CMV compromise.