Analysis: Will Lawmakers Alter SB54 Before the End of the 2016 Session?

Utah State CapitolWill the GOP-controlled Utah Legislature repeal SB54, gut it, or drastically change the 2014 candidate-path-to-the-nomination compromise in the final days of this general session?

If one listens to House Republican leaders, quite possibly.

If one listens to GOP senators, maybe not.

In any case, it appears the final haggling – or political power plays – could go down to the final minutes before adjournment midnight Thursday.

At the heart of the matter are two court cases, one in federal court, another in the Utah Supreme Court.

And Utah Republican Party Chairman James Evans told an open House GOP caucus Monday, that if Federal Judge David Nuffer rules as he believes he will – upholding a political party’s right to decide its own membership – then expect this:

Any Utah GOP candidate will become the party nominee ONLY after being substantially vetted by the caucus/delegate/convention process.

Such an outcome, says Count My Vote president Rich McKeown, would be anathema to Utah’s and America’s long-held political system of allowing voters to pick their own public officeholders.

Any rewriting of SB54 that allows party delegates only to vet candidates “is a breach of the public will,” and a direct violation of the SB54 compromise, said McKeown.

But House Speaker Greg Hughes, R-Draper, who met with McKeown and other CMV leaders on Saturday in a private meeting, told his caucus Monday that that compromise “no longer exists” – as it is clear Nuffer, and maybe the Utah Supreme Court – is on the verge of changing basics to that 2014 compromise.

Yes, this is all quite confusing.

But McKeown warns lawmakers that there may be a simple fix to Nuffer’s concerns. And going beyond that holds perils before Utah voters – whom polls showed clearly favored the CMV petition of 2014.

It would be unwise, says McKeown, to attempt sweeping implementations of limiting, controlling or even sorting who gets on party ballots via the SB54 signature petition route, or how candidates are dealt with if no one gets a majority vote in a multiple primary ballot field.

Bottom line, says McKeown, legislators should be more responsive, and responsible, to the public and voters than to their own party delegates.

That will be the primary test that CMV will look at in any changes before Thursday’s adjournment.  


As reported Monday by UtahPolicy, Rep. Kraig Powell, R-Heber, says he has a simple fix to the situation: Nuffer hints that petition signature thresholds should be between 2 percent and 5 percent of party registered voters within a candidate’s district.

He says just change SB54’s signature thresholds to 2 percent and be done with it for this 2016 election cycle. Powell introduced HB481 Monday to do that.

Sen. Curt Bramble, R-Provo, sponsor of the original SB54, likewise says a simple fix could be found.


But perhaps feeling the backlash of his own GOP House caucus, HughesMonday declared the SB54 compromise dead – Nuffer’s ruling last November, and a second “advisory” decision Friday, killed it.

That’s because, said Hughes, critical to his support of SB54 – and the dual route to the primary – was that the signature course would be significantly difficult to make normal candidates chose only the caucus/delegate/convention route.

At 2 percent, said Hughes, in his own House District 51, he could gather around 200 GOP voter signatures, or he could appeal to 104 Republican convention delegates.

That is not even an equal degree of difficulty – it would be much easier just to get the signatures.

And, Hughes maintains, there would be no deep vetting of candidates as delegates would, and almost anyone could make the GOP primary ballot.

That would lead, naturally, to “plurality” problems – the top party nominee not getting a majority of registered party votes in a closed primary.

McKeown said it was practically impossible, in the last three days of the session, for lawmakers to address the thorny issue of plurality.

Besides, said McKeown, there is nothing in SB54 to stop party delegates taking non-binding votes on candidates, and the party then publicizing whom the delegates/party officially endorse in the primary.

“Such an endorsement should carry considerable weight, one would think,” said McKeown.


But there could be a way, say SB54-haters, of dealing with a non-majority primary outcome: If no candidate got 50 percent-plus-one vote in the primary, throw the top two vote-getters back into a new delegate convention. And let the delegates pick the final nominee.

That suggestion died in the 2015 House. But Hughes mentioned that bill in the House caucus debate Monday.

That’s just one solution that GOP House members could consider.

One McKeown says CMV and Utahns in general greatly dislike.

In the SB54 compromise – one of its principles, said McKeown – was that CMV would agree to keep the caucus/delegate/convention system as an alternative (CMV called only for direct primaries, bypassing the CDC completely) if the delegates didn’t get the final say on signature-route candidates, but primary voters did.

Evans tells UtahPolicy that Massachusetts has such a bifurcated system. Candidates go to a primary, but only candidates who get 15 percent of the convention delegate vote qualify.

Evans is coy over whether delegates to the April 23 state GOP convention could be asked to lower the current 40 percent threshold-to-primary rule, and allow more folks to make the closed primary ballot.

That’s a decision for a later day, Evans says.  


For months Evans discounted the fear – expressed by some SB54 GOP supporters – that the party would ever kick out of the membership folks who A) supported SB54 or B) candidates who took only the signature-gathering route.

But Monday Evans told the caucus, and later reaffirmed with UtahPolicy, that assuming Nuffer reaffirms a party’s right to decide membership, it is Evans’ belief that delegates will demand some say on whoever is allowed to “carry the party banner, carry the party brand.”

That could mean any candidate who takes the signature route (and under the current SB54, candidates who take both the signature and convention route can’t be eliminated from the ballot by delegates), could be denied a spot on the November general election ballot under the Republican Party banner.

In essence, they would be denied party membership.

McKeown sees that as illegal, saying any number of courts have upheld, and it has long been an American ideal, that the individual picks the party he will belong to, the party doesn’t pick him.

“That would be a beautiful system in an autocratic society,” said McKeown. “Universally, parties don’t pick their members; people choose the party they will belong to.”

Evans disagrees: The party will select the process, the nominees. “The state can’t tell us (a private political party) what to do; that is our belief.”