Republican opponents of Utah's dual-track system for candidates to get on the primary ballot suffered another court loss on Friday. The 10th Circuit Court of Appeals in Denver denied their request for an en banc hearing on their appeal claiming the law is unconstitutional.
However, the decision contained a glimmer of hope for the opponents of SB54. Chief Judge Tymkovich wrote that the issues raised in the case "deserve the Supreme Court's attention" because he feels SB54 violates the First Amendment. Tymkovich says the Supreme Court should look at the case because this case goes to the heart of what a political party is.
"The behemoth, corrupt party machines we imagine to have caused the progressive era's turn to primaries are now, in many respects out of commission," he wrote. "In important ways, the party system is the weakest it has ever been - a sobering reality given parties' importance to our republic's stability. And given new evidence of the substantial associational burdens, even distortions, caused by forcibly expanding a party's nomination process, a closer look seems in order.
"The time appears ripe for the Court to reconsider (or rather, as I see it, consider for the first time) the scope of government regulation of political party primaries and the attendant harms to associational rights and substantive ends," he concluded.
Elements within the Utah GOP have fought against SB54 since the Legislature passed it in 2014, setting up a system where candidates can take the traditional caucus/convention route to the ballot, or gather signatures to bypass the traditional party conventions. They can also choose to take both paths.
The 99-page ruling from the 10th Circuit concludes that SB54 does not "impose a severe burden on the Utah Republican Party by potentially allowing the nomination of a candidate with whom the...leadership disagrees."
The court also shot down one of the main arguments of the defenders of the traditional convention system, that state delegates are more engaged and therefore more knowledgable than rank and file voters.
"Are the voters who only participate in party primaries smarter than those who gather for a caucus or convention? Do they make better choices? Perhaps not. But it is not for us to debate the desirability of their outcomes if the voters are given a fair chance to express their differences," said the ruling.
The only legal route left for this particular lawsuit is an appeal to the U.S. Supreme Court.
The legal fight against SB54 nearly bankrupted the Utah GOP until Dave Bateman, the CEO of technology company Entrata stepped in and agreed to bankroll the party's legal challenges to the law. Bateman has vowed to take the current fight to the Supreme Court, but it remains to be seen whether the high court would agree to hear arguments in the case.
Utah Lt. Gov. Spencer Cox hailed the ruling as a chance to put the divisive issue in the past.
"Today's decision provides a sorely needed resolution to a lengthy and divisive issue," he said in a statement. "Gov. Herbert and I look forward to meeting with Republican leadership in the near future to discuss how to best unite our party."