Analysis: Utah Supreme Court Considers SB54

It’s always tough to predict high court rulings based on the justices’ questions during oral arguments – but it doesn’t look good for the Utah Republican Party’s main objection to SB54: That the party, not the candidate, gets to choose the candidate’s route to the primary election.

Before a reconstituted five-member Utah Supreme CourtMondaymorning (Justices Thomas Lee and John Pearce recused themselves because of personal closeness to the issues; Appellate Judges Greg Orme and Kate Toomey filled in), the justices peppered GOP attorney Marcus Mumford for any rational reason that SB54 doesn’t “plainly” say that under the new candidate nomination law the candidate, not party leaders, decide which route he or she takes to the primary election.

SB54 says in a number of places that a Qualified Political Party will allow the candidates to pick “either or both” routes to the party ballot: Gather a certain number of voter signatures; go the traditional route via the party delegate convention; or both at the same time.

In several lawsuits, GOP leaders claim the party decides the route under SB54, and the party has already decided the only route is winning at least 40 percent of the delegates in convention.

If a candidate gets 60 percent of the delegate vote in convention he or she wins the nomination outright. If not, the top two delegate vote-getters advance to the taxpayer-funded primary election.

But Justices Matthew Durrant, Christine Durham and Constandinos Himonas, along with Orme and Toomey, quickly started questioning the GOP’s claim that SB54 allows, in any way, the party to pick the candidate’s route.

The phrase “plain language” of the statute was thrown around liberally. And it appears the state GOP isn’t going to win on that critical issue.

However, other issues raised in the party’s direct appeal to the state high court are murkier.

Assistant Attorney General David Wolf and Mumford both said that another critical issue – will signature-bound candidates be kicked out of the Utah Republican Party for taking what GOP leaders say is an unconstitutional path bypassing party rules — is not legally “ripe.”

That is, since the party has not kicked any signature candidate out of party membership, it is too early say if it will.

After the hearing, state GOP chairman James Evans said the membership question is still before Utah Federal Court Judge David Nuffer. And only after he rules later this month will the GOP determine where it goes next.

And it could — depending on whether the Utah high court gives an “advisory” ruling where the party can attempt to deny a signature candidate the party nomination — mean more lawsuits, more legal wrangling.

Of course, the legal challenges Evans and other GOP bosses are pursuing are one route to destroy SB54.

But there’s also growing political pressure being applied to both Utah GOP legislators and Gov. Gary Herbert.

Herbert has already said he should have vetoed SB54 after the 2014 Legislature and just let the Count My Vote citizen initiative petition go forward. If successful, CMV would disallow any delegate votes on candidates — the only route to the primary election coming via voter signature gathering.

SB54 was an attempt to at least keep the old caucus/delegate/convention route to the party primary as an option – with the clear understanding between CMV backers and GOP lawmakers that a separate, signature-gathering route would also be available.

The state GOP was never an official party to the SB54 compromise – and didn’t agree with it.

Party bosses have diligently tried to stop SB54 in the courts.

Here are but a few of the options that could still happen:

— Federal Judge David Nuffer could rule that the party controls membership.

GOP leaders could then kick out of the party any Republican candidate who took ONLY the signature-gathering route, and kick out of the party any dual-path candidate who got the signatures but who failed to get at least 40 percent of the delegate vote.

— Lt. Gov. Spencer Cox’s Utah Election Office has already ruled that any candidate who gets the required number of signatures will be on the late June primary ballot.

— So GOP leaders could AGAIN sue in court, asking that the state be stopped from putting signature candidates on the ballot.

Thus, any candidate who didn’t get AT LEAST 40 percent of the convention delegate vote would be gone – out of the 2016 election.

— The state GOP, if it fails in its attempt to kick signature candidates out of the party, could only officially recognize/endorse any candidates who got at least 40 percent of the convention delegate votes.

All GOP candidates must sign a pledge to follow party bylaws – and since bylaws don’t allow for a signature route, the party could disavow those candidates publicly.

— The state GOP could actually end up not only giving its official endorsement of convention-approved primary delegates, but could actually campaign AGAINST GOP candidates who got on the ballot via the signature route.

Herbert has taken the signature route, but will also appear before the state GOP convention onApril 23for a delegate vote.

His main GOP challenger, Jonathan Johnson, has chosen to only go to the convention.

Thus, depending on court decisions, it’s possible Herbert could end up getting less than 40 percent in the convention, Johnson getting over 60 percent, and the state GOP kicking Herbert out of the Utah GOP, even though his signatures say he advances to the June primary.

What a mess.

More likely, Herbert will get more than 40 percent of the vote and advance automatically to the primary, but Johnson could get less than 40 percent and be eliminated.

Several of the justices repeated that, historically, courts tend to put candidates on the ballots and let voters decide election outcomes.

Finally, this whole legal SB54 controversy – with GOP delegates angry at Republican legislators who voted for the bill – could lead to the GOP-controlled Legislature going back on its word to CMV and just repealing SB54 in 2017 or later.

That, some political analysts believe, is really the long-term tactic sought by today’s GOP state leaders.

Just two years after adopting SB54, in the 2016 Legislature an attempt in the House to repeal SB54 failed by justfivevotes – 40-30 with three not voting.

If through court rulings, the state GOP can kick signature-gathering Republican candidates out of the party, it’s likely party bosses can bend GOP lawmakers to their delegate/convention-only will.