Opposition Brief — Utah Republican Party, Petitioner v. Spencer J. Cox, Lieutenant Governor of Utah, et al.

No. 18-450

In the Supreme Court of the United States

___________

UTAH REPUBLICAN PARTY, PETITIONER

V.

SPENCER J. COX, ET AL.

________

OPPOSITION TO PETITION FOR WRIT OF

CERTIORARI

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

PETER W. BILLINGS

(Counsel of Record)

DAVID P. BILLINGS

FABIAN VANCOTT

215 So. State Street, Suite 1200

Salt Lake City, UT 84111

(801) 531-8900

pbillings@fabianvancott.com

dbillings@fabianvancott.com

Counsel for Respondent

Utah Democratic Party

i

I.

TABLE OF CONTENTS

I.

TABLE OF CONTENTS .....................................i

II.

TABLE OF AUTHORITIES ...........................ii

III.

INTRODUCTION ............................................1

IV.

OPINIONS BELOW ........................................3

V.

JURISDICTION ..............................................3

VI.

STATEMENT ...................................................3

VII. REASONS FOR DENYING PETITION .......9

A.

URP’s Preference for Nominating

Conventions is Not Constitutionally Protected. .....9

B.

URP Calls for Judicial Activism. .................16

C.

In its Call for Judicial Activism, Amici

Misapprehend the Record, SB54, and this Court’s

First Amendment Jurisprudence Regarding

Political Parties. .....................................................20

VIII.

CONCLUSION............................................22

ii

II.

TABLE OF AUTHORITIES

Cases

Alaskan Indep. Party v. Alaska,

545 F.3d 1173 (9th Cir. 2008).................................... 21

Am. Party of Texas v. White,

415 U. S. 767 (1974)................................................. 4, 10

Anderson v. Celebrezze,

460 U.S. 780 (1983).................................................. 4, 20

Artunoff v. Okla. State Election Bd.,

687 F.2d 1375 (10th Cir. 1982).................................. 13

Bullock v. Carter,

405 U.S. 134 (1972)........................................................ 4

Burdick v. Takashi,

504 U.S. 428 (1992)................................................ 13, 20

Cal. Democratic Party v. Jones,

530 U.S. 567 (2000)...................................................... 10

Clingman v. Beaver,

544 US 581 (2005) ........................................................ 18

Com. v. Rogers,

63 N.E. 421 (Mass. 1902)...................................... 11, 12

Democratic Party of Hawaii v. Nago,

833 F.3d 1119 (9th Cir. 2016),

cert. denied, 137 S.Ct. 2114 (2017) ........................... 21

Eu v. San Francisco Cty. Democratic Cent. Comm.,

489 U.S. 214 (1989)...................................................... 12

LaRouche v. Kezer,

990 F.2d 36 (2d Cir. 1993) .......................................... 13

Lightfoot v. Eu,

964 F.2d 865 (9th Cir. 1992),

cert. denied, 507 U.S. 919 (1993)............................... 10

iii

Mims v. Arrow Fin. Servs., LLC,

565 U.S. 368 (2012)........................................................ 5

N.Y. Bd. of Elections v. Lopez Torres,

552 U.S. 196 (2008).......................................... 11, 21, 22

Nader v. Schaffer,

417 F. Supp. 837 (D. Conn.),

summarily aff’d, 429 U.S. 989 (1976) ........................ 4

NLRB v. SW Gen., Inc.,

580 U.S. ___, 137 S.Ct. 929 (2017).......................... 5, 6

Ray v. Blair,

343 U.S. 214 (1952)........................................................ 9

Regan v. Taxation with Representation of Wash.,

461 U.S. 540 (1983)...................................................... 15

San Francisco Cty. Democratic Cent. Com. v. Eu,

826 F.2d 814 (9th Cir. 1987), aff’d 485 U.S. 1004

(1988)........................................................................... 8, 18

Storer v. Brown,

415 U. S. 724 (1974)........................................... 4, 10, 13

Tashjian v. Republican Party of Conn.,

479 U. S. 208 (1986)..................................................... 11

Timmons v. Twin Cities Area New Party,

520 U.S. 351 (1997)...................................................... 15

TVA v. Hill,

437 U.S. 153 (1978)........................................................ 6

United States v. Classic,

313 U.S. 299 (1941)...................................................... 11

Utah Republican Party v. Cox,

177 F. Supp. 3d 1343 (D. Utah 2016)................... 8, 12

Utah Republican Party v. Cox,

178 F. Supp. 3d 1150 (D. Utah 2016)............... 5, 8, 19

iv

Utah Republican Party v. Cox,

2016 UT 17, 373 P.3d 1286 ...................... 1, 6, 8, 12, 17

Utah Republican Party v. Cox,

892 F.3d 1066 (10th Cir. 2018).......... 5, 6, 8, 13, 15, 21

Utah Republican Party v. Herbert,

133 F. Supp. 3d 1337 (D. Utah 2015)............... 6, 7, 13

Utah Republican Party v. Herbert,

144 F. Supp. 3d 1263 (D. Utah 2015)..................... 2, 7

Williams v. Rhodes,

393 U.S. 23 (1968) .......................................................... 4

Statutes

26 U.S.C. § 276.................................................................. 15

28 U.S.C. § 1254(1)............................................................. 3

Utah Code § 20A-8-102(4) ............................................ 2, 7

Utah Code § 20A-9-101(12) .............................................. 1

Utah Code § 20A-9-101(12)(a) (2015)............................. 7

Utah Code § 20A-9-101(d) ................................................ 2

Utah Code § 20A-9-401(1) ................................................ 2

Utah Code § 20A-9-401(2) ............................................ 1, 7

Utah Code § 20A-9-406 ..................................................... 2

Utah Code § 20A-9-407 ..................................................... 1

Utah Code § 20A-9-408 ..................................................... 1

Other Authorities

Antonin Scalia, The Legal Framework for Reform,

Commonsense, vol. 4, no. 2 (1981).............................. 9

Emily Larson, “Less than 15 percent of candidates

took signature-gathering path to primary ballot”

Deseret News, April 22, 2016 .................................... 21

Jan. 2, 2018 Notice of Intent to Gather Signatures . 19

v

Lee Davidson, “Utah Supreme Court deals a blow to

Count My Vote: Election reform initiative won’t be

on November’s ballot,” Salt Lake Tribune, Aug. 24,

2018. .................................................................................. 6

Leon D. Epstein, Political Parties in the American

Mold (1986) ............................................................... 9, 10

Lisa Riley Roche and Dennis Romboy, “Utah GOP

delegates force primary elections for Mitt Romney,

John Curtis” Deseret News, April 21, 2018............ 19

Mar. 12, 2018 Declaration of Candidacy..................... 19

Richard H. Pildes, The Constitutionalization of

Democratic Politics, 118 Harv. L. Rev. 28 (2004) . 14

The Federalist Papers (1999) (Clinton Rossiter ed.) 16

Constitutional Provisions

U.S. Const. Amd. I.................................... 15, 17, 20, 21, 22

U.S. Const. Art. I, Sec. 4 ................................................... 1

1

III.

INTRODUCTION

This Court has consistently held that a

political party’s access to the ballot is subject to

certain reasonable “Times, Places and Manner of

holding Elections” restrictions, U.S. Const. Art. I,

Sec. 4, and that those restrictions include the State’s

ability to require a political party to nominate its

candidates via a primary election, a nominating

convention, or some combination of the two.

Consistent with this Constitutionally recognized

power, the Utah legislature changed the Utah

Election Code’s nominating procedure for political

parties in 2014 through a bill known as SB54. Utah

law now provides candidates of Qualified Political

Parties (“QPPs”)1 three routes to the primary ballot:

either (1) via convention, (2) signature gathering, or

(3) both (the “Either or Both Provision”). See Utah

Code §§ 20A-9-101(12)(c); -407; -408.

In its current form, SB54 is constitutional

because it does not attempt to “govern or regulate the

internal procedures” of a political party. Utah Code

§ 20A-9-401(2). On a certified question in this case,

the Utah Supreme Court has already concluded SB54

does “not amount to internal control or regulation of

the party by the State.” Utah Republican Party v.

Cox, 2016 UT 17, ¶ 6, 373 P.3d 1286.

In its petition, the Utah Republican Party

(“URP”) contends that SB54 is the result of

discrimination or animus towards URP. There is

absolutely nothing in the record to support this

assertion. All the evidence is to the contrary. SB54

1 See Utah Code § 20A-9-101(12) (defining QPP).

2

was passed by a majority of legislators who were

URP members,2 signed into law by another member

(Governor Herbert), and is enforced by yet another

(Lieutenant Governor Cox (the “LG”)). The law’s

stated purpose was to open new avenues for

candidates to access the ballot so that primary voters

had more choices. Utah Code § 20A-9-401(1). After

URP’s first lawsuit challenging SB54 was partially

successful, striking down a provision that forced

QPPs to permit unaffiliated voters’ participation in

their primaries, every other Registered Political

Party (“RPP”)3 in Utah has accepted the law except

one—URP. The Utah Democratic Party (“UDP”)

intervened into URP’s second lawsuit challenging the

constitutionality of SB54 because URP was not

complying with the law.4

See

SB54S2

Roll

Call

House

(https://le.utah.gov/DynaBill/svotes.jsp?sessionid=2014GS&vote

id=635&house=H)

and

Senate

(https://le.utah.gov/DynaBill/svotes.jsp?sessionid=2014GS&vote

id=893&house=S)

2

See Utah Code § 20A-8-102(4) (defining RPP). All existing

political parties in Utah are RPPs. Each RPP has certified to

the LG that it intends to nominate its candidates in accordance

with the statutory requirements of a QPP. See Utah Code

§§ 20A-9-101(d); -406. See also Utah Republican Party v. Cox,

178 F. Supp. 3d 1150, 1161 & n.43 (D. Utah 2016); Utah

Republican Party v. Herbert, 144 F. Supp. 3d 1263, 1267-1270

(D. Utah 2015). Thus, every existing political party in Utah is

both an RPP and has chosen to be a QPP.

3

URP’s bylaws still do not permit its candidates to gather

signatures to access the primary ballot, which the Utah

Supreme Court has clearly stated QPPs are required to do, see

Utah Republican Party v. Cox, 2016 UT 17, ¶ 6, 373 P.3d 1286,

4

3

URP’s petition engages in several sleights of

hand and omissions of material information to call

the constitutionality of SB54 into doubt to excuse this

noncompliance. Because SB54 is well within

established precedent for the past five decades and

public policy for the past century, this Court should

deny URP’s petition for a writ of certiorari.

IV.

OPINIONS BELOW

Besides the decisions URP discusses in the

Petition, URP’s statement of the opinions below

omits the Utah Supreme Court’s decision regarding

state law, the district court’s second opinion granting

summary judgment to respondent with respect to the

signature gathering provisions of SB54, and the

district court’s decision in the first case to deny

URP’s request for a preliminary injunction. These

omitted decisions are discussed below.

V.

JURISDICTION

UDP agrees that this Court has jurisdiction to

hear URP’s petition pursuant to 28 U.S.C. § 1254(1).

VI.

STATEMENT

URP seeks to enshrine into the Constitution

the desire of a portion of its leadership to select the

and the LG is not enforcing this willful defiance of state law.

Since SB54’s inception, URP’s behavior has been excused as

falling just short of requiring legal enforcement and UDP’s

claims were dismissed without prejudice after the LG obtained

summary judgment against URP and were deemed not yet ripe

by both the Utah Supreme Court, see id., ¶¶ 8-12, and the Tenth

Circuit. See Utah Republican Party v. Cox, 892 F.3d 1066, 109293 (10th Cir. 2018). UDP did not seek a writ of certiorari

regarding this determination.

4

nomination method of their choosing, taking that

selection away from the Utah Legislature. Political

parties, however, have never enjoyed this desire as a

constitutional protection, and for good reason. There

are “two different, although overlapping, kinds of

rights—the right of individuals to associate for the

advancement of political beliefs, and the right of

qualified voters, regardless of their political

persuasion, to cast their votes effectively. Both of

these rights, of course, rank among our most precious

freedoms.” Williams v. Rhodes, 393 U.S. 23, 30

(1968). Even these fundamental rights, however, are

subject to substantial election regulatory regimes to

ensure the integrity of the democratic process itself

so that elections are “fair and honest” and that

“order, rather than chaos” prevail. Storer v. Brown,

415 U. S. 724, 730 (1974).

For over a century, state legislatures have

increasingly chosen to require how political parties

nominate their candidates, and the Court has

repeatedly stated that it was “too plain for

argument,” Am. Party of Texas v. White, 415 U. S.

767, 781 (1974), that the states have had “the

undoubted right” to place such conditions into state

law, Anderson v. Celebrezze, 460 U.S. 780, 788 n.9

(1983), “presumably because they find it beneficial to

allow the general party membership a voice in the

nominating process.” Nader v. Schaffer, 417 F. Supp.

837, 843 (D. Conn.), summarily aff’d, 429 U.S. 989

(1976)(citing Bullock v. Carter, 405 U.S. 134, 148

(1972)). Allowing general party membership of all

political parties a greater voice in the nomination

process elections is a neutral policy judgment, not

5

discrimination against URP, no matter how much a

few URP leaders dislike that policy judgment.

The district court found that “[t]he Undisputed

Material Facts do not show that the URP was

targeted or singled out because of its ‘extreme’

viewpoints. Indeed, this argument makes no sense. A

majority of the members of the Utah Legislature are

members of the URP and it is hard to believe that

they would target their own party or the viewpoints

their party advances.” Utah Republican Party v. Cox,

178 F. Supp. 3d 1150, 1187 (D. Utah 2016). See also

Utah Republican Party v. Cox, 892 F.3d 1066, 1073

(10th Cir. 2018) (noting that “the Utah Legislature —

comprised of overwhelming Republican majorities in

both the State House and State Senate — passed

SB54”). The record below does not provide any

evidence of viewpoint discrimination or animus

against URP. URP’s calls for this Court to revisit the

factual findings of the district court should be

rejected.

While URP points to three items to suggest

discrimination, each is unavailing upon examination.

First, its own verified complaint from the first case,

(JA 57-59) is merely a sworn statement by its former

party chair, not undisputed evidence that was proven

in either the first case or the second. Second, isolated

statements of a few URP member legislators who

voted for SB54. However, it is the text of the enacted

legislation, “not the preferences expressed by certain

legislators,” NLRB v. SW Gen., Inc., 580 U.S. ___, 137

S.Ct. 929, 942 (2017), or “even a bill’s sponsor,” that

controls. Mims v. Arrow Fin. Servs., LLC, 565 U.S.

368, 385 (2012). As this Court recently noted, “floor

6

statements by individual legislators rank among the

least illuminating forms of legislative history.” SW

Gen., Inc., 137 S.Ct. at 943. Third, statements by an

organization called Count My Vote, which has twice

proposed initiatives that never appeared on the ballot

in Utah,5 fair even worse. Since the Utah Supreme

Court concluded the statute complained of contained

“no ambiguity,” Utah Republican Party v. Cox, 2016

UT 17, ¶ 7, 373 P.3d 1286, there is no need engage in

the modern-day equivalent of reading entrails to

divine the Utah Legislature’s intent. See, e.g., TVA v.

Hill, 437 U.S. 153, 184 n.29 (1978). URP’s petition

should be denied.

Next, URP cites throughout its petition

claimed burdens on its associational rights. Yet it

omits from its petition any meaningful discussion of

the results of its first challenge to SB54. And

mentions only in passing that Utah offers multiple

paths to the primary ballot. Pet at 7.

In the first case, URP sought a temporary

restraining order against SB54, asserting the statute

was facially unconstitutional. See Utah Republican

Party v. Herbert, 133 F. Supp. 3d 1337, 1345-46 (D.

Utah 2015). The district court denied URP’s request

for a TRO because the RPP route to the ballot was

5 See generally Cox, 892 F.3d at 1096-97 & 1083 n.15

(describing Count My Vote’s role in SB54’s passage); Lee

Davidson, “Utah Supreme Court deals a blow to Count My Vote:

Election reform initiative won’t be on November’s ballot,” Salt

Lake Tribune, Aug. 24, 2018.

7

perfectly constitutional,6 and URP could opt to

remain an RPP rather than access the ballot as a

QPP. See id., at 1342-48. No political party in Utah

has ever challenged the constitutionality of the RPP

route. Instead, URP conceded that the RPP path to

Utah’s ballot was unquestionably constitutional. See

id., at 1347 & n.49. When this reality is considered,

URP’s petition amounts to a complaint about claimed

burdens imposed upon it because URP has chosen to

nominate its candidates by one path to the ballot

(QPP), rather than another path (RPP) that it

concedes is constitutional.

At the summary judgment stage of the first

case, URP challenged SB54’s requirement that

persons who were not members of any political party

be allowed to participate in the primary election of

URP’s candidate (the “Unaffiliated Voter Provision”).

See Utah Code § 20A-9-101(12)(a) (2015). The district

court struck that requirement from SB54 so that the

decision who may participate in a primary election of

a party’s candidate is left to the party. See Utah

Republican Party v. Herbert, 144 F. Supp. 3d 1263

(D. Utah 2015). Since the District Court struck down

the Unaffiliated Vote Provision, URP can ensure that

any voter in its primary election is a URP member,

and SB54 imposes no limits on how a party regulates

its membership. See Utah Code § 20A-9-401(2). In

the face of these facts, the burdens URP claims on its

associational rights dissolve.

Under the RPP route, an RPP candidate needs to gather

signatures of at least 2% of the total votes cast for that race to

access the ballot. See Utah Code § 20A-8-102(4). See also supra

note 3 (explaining the differences between an RPP and a QPP).

6

8

URP retains the right to ensure its primary

election is limited to those it wishes to permit to

participate. URP’s own choice to operate as a QPP

and its decision not to regulate its membership

internally,7 not SB54, is to blame for candidates that

some of the party’s leadership dislikes. Yet, the

Constitution does not permit the state or the courts

to protect a political party from itself. See San

Francisco Cty. Democratic Cent. Com. v. Eu, 826 F.2d

814, 831 (9th Cir. 1987), aff’d 485 U.S. 1004 (1988).

By focusing its argument on one particular

part of the QPP path to the ballot rather that all of

the paths available under SB54, URP engages in

sleight of hand, and ignores precedent that demands

consideration of the entire ballot process when

evaluating constitutional burdens. See Cox, 892 F.3d

at 1088 (citing cases). The RPP path was also

important to the district court’s decision in the

second case upholding Utah Code § 20A-9-408 (the

“Signature Gathering Provision”) because the RPP

path provides unimpeachably constitutional route to

access the ballot. See Cox, 178 F. Supp. at 1161,

1183; 177 F. Supp. 3d 1343, 1364-71(D. Utah 2016).

Perhaps this is why URP has conveniently omitted

from its petition the district court opinion regarding

the Signature Gathering Provision.

URP’s attempt to isolate its complaints about

one part of the QPP path from the rest of Utah’s

Election Code does not create a constitutional

7 See Utah Republican Party v. Cox, 178 F. Supp. 3d 1150, 1183-

84 (D. Utah 2016); Utah Republican Party v. Cox, 2016 UT 17,

¶¶ 8-11, 373 P.3d 1286 (Utah 2016).

9

problem. As noted throughout UDP’s brief, this Court

has repeatedly explained that a state’s election code

should be evaluated in its entirety and the rights of a

political party must be balanced against those of

candidates, the state, and the electorate. URP’s

petition should be denied.

VII.

REASONS FOR DENYING PETITION

A.

URP’s Preference for Nominating

Conventions is Not Constitutionally Protected.

“[M]ost American states, when adopting directprimary legislation in the twentieth century, followed

the mandatory pattern established by Wisconsin in

1903. . . . By 1912, a majority of states had adopted

mandatory primary laws, and by 1917, all but four

states had direct-primary laws for at least some state

offices.” Leon D. Epstein, Political Parties in the

American Mold 168, 169 (1986).8 By 1952, this Court

observed

that

“[d]issatisfaction

with

the

manipulation of conventions caused that system to be

largely superseded by the direct primary.” Ray v.

Blair, 343 U.S. 214, 221 (1952). “Unlike their

counterparts elsewhere when the Australian ballot

was adopted, American parties were already unable

on their own to meet public expectations with respect

to candidate selection. Their failure was most

See also Antonin Scalia, The Legal Framework for Reform,

Commonsense, vol. 4, no. 2, at 49 (1981) (“We have an accepted

governmental tradition of fairly extensive regulation” of

political parties’ nomination processes, “dating from at least the

days of La Follette. . . in the 1900s. . . . . This history is at odds

with any view that parties have intrinsic rights to free

association that preclude state choice of primary-election

structures.”).

8

10

flagrantly but solely a result of fraud, corruption and

other organizational abuses.” Epstein at 169.

This is why a State “may insist that intraparty

competition be settled before the general election by

primary election or by party convention.” Am. Party

of Texas v.White, 415 U.S. 767, 781 (1974) (citing

Storer v. Brown, 415 U.S. 724, 733-36 (1974)).9 After

all, “States have a major role to play in structuring

and monitoring the election process, including

primaries . . . . in order to assure that intraparty

competition is resolved in a democratic fashion.” Cal.

Democratic Party v. Jones, 530 U.S. 567, 572 (2000)

(citations omitted). In other words, “the State’s

interest in enhancing the democratic character of the

election process overrides whatever interest the

Party has in designing its own rules for nominating

candidates.” Lightfoot v. Eu, 964 F.2d 865, 873 (9th

Cir. 1992), cert. denied, 507 U.S. 919 (1993). As

Justice Oliver Windle Holmes famously observed,

9 As the

Court explained in upholding the constitutionality of

California’s “sore loser” provision,

The direct party primary in California is not merely

an exercise or warm-up for the general election but an

integral part of the entire election process, the initial

stage in a two-stage process by which the people

choose their public officers. It functions to winnow out

and finally reject all but the chosen candidates. The

State’s general policy is to have contending forces

within the party employ the primary campaign and

primary election to finally settle their differences. The

general election ballot is reserved for major struggles;

it is not a forum for continuing intraparty feuds.

Storer v. Brown, 415 U.S. 724, 735 (1974) (footnote omitted).

11

“[t]he Legislature has a right to attach reasonable

conditions to that advantage [of ballot listing], if it

has a right to grant the advantage.” Com. v. Rogers,

63 N.E. 421, 423 (Mass. 1902).

A political party’s right “to choose a candidateselection process that will in its view produce the

nominee who best represents its political platform” is

“circumscribed . . . when the State gives the party a

role in the election process.” N.Y. Bd. of Elections v.

Lopez Torres, 552 U.S. 196, 202-03 (2008). This is

particularly true because “the practical influence of

the choice of candidates at the primary may be so

great as to affect profoundly the choice at the general

election, even though there is no effective legal

prohibition upon the rejection at the election of the

choice made at the primary, and may thus operate to

deprive the voter of his constitutional right of choice.”

United States v. Classic, 313 U.S. 299, 319 (1941).

For this reason, the Court has “permitted States to

set their faces against ‘party bosses’ by requiring

party-candidate selection through processes more

favorable to insurgents, such as primaries.” Lopez

Torres, 552 U.S. at 205. As the late Justice Scalia

explained, the State is not constitutionally

bound

to

honor

a

party’s

democratically expressed desire that

its candidates henceforth be selected

by convention rather than by primary,

or by the party’s executive committee

in a smoke-filled room.

Tashjian v. Republican Party of Conn., 479 U. S. 208,

237 (1986) (Scalia, J., dissenting).

12

Nevertheless, a political party enjoys

“discretion in how to organize itself, conduct its

affairs, and select its leaders.” Eu v. San Francisco

Cty. Democratic Cent. Comm., 489 U.S. 214, 230

(1989). SB54 strikes this balance, and leaves these

important discretionary functions in the hands of

Utah’s political parties.

The Utah Supreme Court, on a certified

question, has already decided that SB54 “does not

require [URP] seek certification as a qualified

political party, and it does not purport to mandate

the adoption of any provisions in its constitution,

bylaws, rules, or other internal procedures.” Utah

Republican Party v. Cox, 2016 UT 17, ¶ 6, 373 P.3d

1286. The fact that “if a party seeks certification as a

QPP, it must comply with the statute’s

requirements. . . . does not amount to internal control

or regulation of the party by the State.” Id.; accord

Rogers, 63 N.E. at 423.

The very published opinions in the procedural

history of this case that URP omitted from its

petition demonstrates the lack of any burden

imposed by SB54 on URP. When considering the

burdens SB54 imposes on political parties, the

district court found, and the Tenth Circuit agreed,

that in the face of a system that offered multiple

paths to the ballot –one of which URP conceded was

unquestionably constitutional– an additional path to

the ballot cannot be deemed a burden on URP’s

constitutional rights. See Cox, 177 F. Supp. 3d at

164-71; see also id. at n.174 (“URP recognizes that

there are at least some URP candidates who have

successfully met the signature requirements to

13

obtain access to the ballot.”); Utah Republican Party

v. Cox, 892 F. 3d 1066, 1087-88 (10th Cir. 2018).10

In the first case, URP conceded the RPP path

is constitutional. See Herbert, 133 F. Supp. 3d 1347 &

n.49. URP’s choice to have its bylaws out of

compliance with state law does not rise to the level of

a constitutional concern as to URP’s associational

rights. This Court should deny the Petition.

Finally, Amici and URP incorrectly claim that

the Tenth Circuit’s decision in this case could

somehow lead states to regulate the internal affairs

of other expressive associations despite conceding the

en banc’s panel’s express limitation to the contrary.

Pet. at 33-36. This Court should not accept the

invitation to follow the imagined parade of horribles.

Amici and URP’s arguments are irrelevant to the

legal questions at hand. Unlike URP and other

The Tenth Circuit declined to wholly adopt the Second

Circuit’s “lesson” as a “per se rule” that “provided it is not

wholly irrational, an otherwise unconstitutional ballot-access

statute will not be struck down so long as there is an

alternative, constitutional, method of accessing the ballot.” Cox,

892 F.3d at 1088 (citing LaRouche v. Kezer, 990 F.2d 36, 38 n.1

(2d Cir. 1993)). Instead, the Tenth Circuit looked to this Court’s

precedent and its own to conclude ballot qualification statutes

must be viewed as a whole. See id. For example, in Burdick v.

Takashi, 504 U.S. 428 (1992), the Court upheld Hawaii’s ban on

write-in voting “in light of the adequate ballot access afforded

under Hawaii’s election code.” Id., at 438-39. See also Cox, 892

F.3d at 1088 (citing Artunoff v. Okla. State Election Bd., 687

F.2d 1375, 1378 (10th Cir. 1982)). The Tenth and Second

Circuit’s conclusions in this regard are in line with this Court’s

precedent. See Storer, 415 U.S. at 737 (declining to examine the

rest of California’s Elections Code after determining the “sore

loser” ban was constitutional).

10

14

political parties, the Boy Scouts, the Sierra Club,

churches, and other expressive associations do not

seek to access election ballots. See Richard H. Pildes,

The Constitutionalization of Democratic Politics, 118

Harv. L. Rev. 28, 107, 107 n.323 (2004) (“[C]ourts

must engage in direct, functional analysis of the role

of parties and primaries in American democracy.

That analysis is not furthered by reasoning

analogically from the Jaycees, the Boy Scouts, the

Mormons, or similar religious or civil-society entities”

because “the proper ‘analogy’ to state laws dictating

the internal affairs and leadership section

mechanisms of civil-society organizations would be

the laws regulating internal party structure or the

party’s choice of organizational leaders, not laws

regulating the conditions that must be met for

immediate access to the ballot.”). As the Tenth

Circuit noted:

URP is not a parish or a club,

but

rather

a

political

association whose activities run

the gamut from purely internal

— such as voting on the party

platform — to a hybrid internalexternal — such as nominating

candidates who will appear on

the general election ballot in the

hopes of being elected to

represent not the URP, but the

broader citizenry of Utah. The

entire point of the Supreme

Court’s jurisprudence in this

area is to recognize that the

15

state’s ability to regulate the

association is not the same in

the second instance as it is in

the first.

Cox, 892 F.3d at 1079 n.6.

When an association attempts not merely to

comment on the political process but to create a

political party that proposes candidates for elective

office, the First Amendment analysis changes and

certain burdens are permitted to preserve the

integrity of our election process. See, e.g., Timmons v.

Twin Cities Area New Party, 520 U.S. 351, 358 (1997)

(“States may, and inevitably must, enact reasonable

regulations of parties, elections, and ballots to reduce

election- and campaign related disorder.”).

Expressive associations merely engaging in the

political process enjoy certain privileges that political

parties do not. For example, some donors to the

Sierra Club can deduct their contributions from their

federal income taxes. See Regan v. Taxation with

Representation of Wash., 461 U.S. 540, 544-51 (1983).

The same is not true for donors to the Green Party.

See, e.g., 26 U.S.C. § 276. Without violating the First

Amendment, the law treats the Sierra Club and the

Green Party differently, even though they share

similar views on environmental issues, because one

seeks access to the ballot while the other does not.

URP’s and Amici’s arguments and proclaimed

concerns for other expressive associations are easily

dismissed as red herrings in the face of clear,

longstanding First Amendment jurisprudence

16

distinguishing those associations from

parties who seek to access the ballot.

political

B.

URP Calls for Judicial Activism.

URP makes numerous requests in its petition

that should give this Court pause. URP’s petition is

little more than a call for judicial activism. Each of

the issues discussed below present a policy decision

that is best left to the discretion of the legislative

branch of Utah’s government, not the judicial branch

of the federal government.

First, URP points to Chief Judge Tymkovich’s

call for review “because of ‘facts on the ground’ that

make ‘the party system [] the weakest it has ever

been—a sobering reality given parties’ importance to

our republic’s stability.” Pet at 12 (quoting Pet at

99a); see also Pet. at 25. Yet there is no support for

this contention regarding the strength of the party

system.11 When, as here, there are no associational

burdens on URP –who remains free to regulate its

membership as it sees fit– the policy decisions of how

political parties should be permitted to access the

Utah primary ballot are best left to the Utah

Legislature, not this Court. URP actually

acknowledges as much later in its petition when it

notes that if the system results in candidates whose

views differ from those of a party, “parties can choose

to adjust accordingly.” Pet. at 26. Yet, URP never

explains why this Court should make that

Nor is there any support for the suggestion that the party

system is important to our republic’s stability. See generally

Federalist No. 10 (J. Madison), The Federalist Papers at 45-52

(1999) (Clinton Rossiter ed.) (decrying “factions,” the protopolitical parties of the era).

11

17

adjustment for all Utah voters, rather than URP

adjusting its membership requirements if it has a

true concern about candidates who do not reflect its

opinions on issues of the day.

Second, URP argues that its preferred caucusconvention system

reflects a belief—to which the duly

constituted Party is entitled under the

First Amendment—that members who

merely register to vote as Republicans,

but do not invest the time to discuss the

issues and candidates in neighborhood

caucuses, are not as likely to reflect the

Party’s values and beliefs as members

who attend the caucuses.

Pet. at 15-16. On URP’s certified question, the Utah

Supreme Court has already held that SB54 makes no

effort to “mandate the adoption of any provisions in

[URP’s] constitution, bylaws, rules, or other internal

procedures.” Cox, 2016 UT 17, ¶ 6, 373 P.3d 1286. In

the face of such a holding, it is difficult to reconcile

how URP candidates who gather signatures from

URP members for elective office do not reflect its

values. It is also difficult to reconcile why URP

cannot regulate its own membership if such members

do not reflect the party’s values and instead insist on

forcing upon Utah an election process that the Utah

Legislature has not chosen.

The Constitution does not protect a political

party from itself. Under the First Amendment

18

although a state’s interest in orderly

elections allows it to impose reasonable,

non-discriminatory restrictions on ballot

access, a state may not go to bat for

political parties to assure that they

remain ballot-qualified. In other words,

a state has no interest in regulating

political parties for the purpose of

helping them win or retain voter

support.

Eu, 826 F.2d at 831. The burdens that URP claims do

not actually exist. URP’s complaints about its

members who seek their party’s nomination should

not give rise to this Court’s review of the Utah

Legislature’s policy decision about how a party and

its candidates can access the Utah ballot. As Justice

Thomas observed, “[t]o deem ordinary and

widespread burdens like these severe would subject

virtually every electoral regulation to strict scrutiny,

hamper the ability of States to run efficient and

equitable elections, and compel federal courts to

rewrite state electoral codes. The Constitution does

not require that result[.]” Clingman v. Beaver, 544

US 581, 593 (2005).

Third, obliquely pointing to the election of

President Trump, URP argues

‘outsider’ candidates are becoming a

dominant force in American politics.

Given that these candidates frequently

defy accepted political norms, to remain

viable, political parties must be allowed

the tools necessary to ensure such

19

candidates’ loyalty to the party that

nominates them.

Pet. at 19. URP then calls into question the loyalty of

a URP member duly nominated by its members in a

primary election and subsequently elected by the

people of Utah—U.S. Representative John Curtis—

and argues that “voters will likely see instead . . . a

series of Manchurian Candidates bearing the name of

the Party, but reflecting the philosophies of

whichever faction paid for their petition drives and

subsequent campaigns.” Pet. at 20, 26.12

Apparently incapable or unwilling to do its

own dirty work, URP repeats its calls for the

judiciary to help URP regulate its membership. See

Cox, 178 F. Supp. 3d at 183-84. URP retains the right

to set membership requirements that also ensure its

candidates are loyal to URP and its views since SB54

still permits URP to require that its candidates and

those who sign its candidates’ petitions be members

of the URP. If URP chooses not to implement such

requirements, that is its choice. In short, URP

In 2018, Rep. Curtis opted to both gather signatures and

participate in URP’s convention. See Jan. 2, 2018 Notice of

Intent

to

Gather

Signatures

available

at

https://tinyurl.com/ydyau65q, Mar. 12, 2018 Declaration of

Candidacy available at https://tinyurl.com/y996a7vj. While he

gathered enough valid signatures to qualify for the primary

ballot, Rep. Curtis was unable to garner sufficient support at

the convention to become the party’s nominee via the

convention route. See https://elections.utah.gov/2018-candidatesignatures; Lisa Riley Roche and Dennis Romboy, “Utah GOP

delegates force primary elections for Mitt Romney, John Curtis”

Deseret News, April 21, 2018. Rep. Curtis ultimately prevailed

in the URP primary and in the general election this November.

12

20

already has “the tools necessary to ensure . . .

candidates’ loyalty to the party that nominates

them.” Pet. at 19.

URP’s own internal disagreements do not give

rise to a question of constitutional significance. If a

candidate does not reflect URP values, URP can

revoke that candidate’s membership. This Court

should not accept URP’s invitation to meddle in

Utah’s election process. URP could solve all of the

“problems” URP identifies through its own internal

procedures that SB54 does not regulate in any way.

C.

In Their Calls for Judicial Activism,

Amici Misapprehend the Record, SB54, and

this Court’s First Amendment Jurisprudence

Regarding Political Parties.

Without citation to any evidence, Amici boldly

proclaim that the purpose of SB54 was to force URP

to nominate more moderate candidates. As discussed

in Part I supra, the District Court found that there

were no undisputed material facts to support this

assertion. URP failed to prove this allegation of

viewpoint discrimination both in the first and second

case.

Amici similarly fail to engage substantively

with over four decades of stare decisis that

establishes political parties are different than other

expressive associations because they want to access

the ballot and the careful balancing test the Court

created to weigh the conflicting interests of the state

and the political party. See Burdick v. Takushi, 504

U.S. 428, 434 (1992); Anderson v. Celebrezze, 460

21

U.S. 780, 789 (1983). The Court is not obliged to toss

out the baby with the bathwater merely because

Amici dislike the rulings of the Ninth and Tenth

Circuits. See Utah Republican Party v. Cox, 892 F. 3d

1066 (10th Cir. 2018); Democratic Party of Hawaii v.

Nago, 833 F.3d 1119 (9th Cir. 2016), cert. denied, 137

S.Ct. 2114 (2017); Alaskan Indep. Party v. Alaska,

545 F.3d 1173 (9th Cir. 2008).

Given the complete lack of evidence to support

claims of viewpoint discrimination, Amici’s requests

further highlight that their true wish is to wield the

First Amendment as a sword to achieve things

contrary to the will of the Utah Legislature—which

overwhelmingly consists of URP members—and the

URP membership itself, which in primary after

primary chose the signature gatherer over the

candidate who opted to pursue the convention-only

route.13 It an extreme anti-democratic position

unsupported by any legal authority.

This Court “permitted States to set their faces

against ‘party bosses’ by requiring party-candidate

selection through processes more favorable to

insurgents, such as primaries.” Lopez Torres, 552

It is worth noting that some of the Amici, as current and

former officials elected by the people of Utah, could have

intervened below but chose not to, and one Amicus even took

advantage of the Signature Gathering Provision—U.S. Sen.

Mike Lee. Sen. Lee, who is not shy about expressing his opinion

that certain statutes are unconstitutional in his view, made a

contrary statement in 2016 when he exercised his rights under

the Either or Both Provision and gathered signatures to ensure

his place on the primary ballot. See Emily Larson, “Less than 15

percent of candidates took signature-gathering path to primary

ballot” Deseret News, April 22, 2016.

13

22

U.S. at 205. It does not permit losing candidates (or

interest groups) to use the judiciary under the guise

of the First Amendment to change the nomination

rules when those rules fail to achieve their preferred

results. See id.

In SB54, the Utah Legislature crafted a

comprehensive, reasonable, and viewpoint neutral

set of amendments to the Election Code designed to

increase candidate and electorate participation in the

state’s primary elections. Since their policy decision

was well within the bounds of established precedent,

it should be respected, not judicially repealed.

VIII. CONCLUSION

Based on the foregoing, and for the reasons

stated by the LG, URP’s petition should be denied.

DATED this 29th day of January, 2019.

Respectfully submitted:

/s/ Peter W. Billings

PETER W. BILLINGS

(Counsel of Record)

DAVID P. BILLINGS

FABIAN VANCOTT

215 So. State Street, Suite 1200

Salt Lake City, UT 84111

(801) 531-8900

pbillings@fabianvancott.com

dbillings@fabianvancott.com

Attorneys for Respondent

Utah Democratic Party