A group created by conservatives on the Utah Republican Party’s state central committee announced Monday that the party will again appeal a court ruling that upheld the state election law allowing candidates to qualify for the primary ballot by collecting signatures.
The five-member constitutional defense committee — created by the central committee to decide whether to pursue any such legal action instead of Party Chairman Rob Anderson — also said it retained attorney Gene Schaerr to appeal its latest loss.
Schaerr is best known in Utah for leading the state’s unsuccessful defense of a constitutional amendment to ban gay marriage. He specializes in appeals in federal courts, including the U.S. Supreme Court.
| Courtesy Gene C. Schaerr
Last month in a 2-1 decision, a three-member panel of the 10th Circuit Court of Appeals in Denver upheld Utah’s 2014 election law, called SB54, as had two earlier court rulings.
“The party will soon be filing a petition with the 10th Circuit asking all members of the court, not just the three-judge panel, to weigh in,” said Don Guymon, spokesman for the constitutional defense committee. The party contends the new law infringes on its constitutional right of association by controlling how it selects nominees.
He noted that the dissenter in the decision was Chief Judge Timothy M. Tymkovich.
“A 2-1 decision, in which a respected chief judge like Judge Tymkovich writes a thorough and deep dissent, gives the party a real chance to challenge the result and make sure the court’s decision is consistent with the U.S. Constitution,” Guymon said.
Tymkovich said the law “attempts to change the substance of the Republican Party under the guise of the state’s authority to regulate electoral procedure.”
He compared it to a California case where the state intentionally tried to reshape the party’s message and favor nominees with “moderate positions.”
However, the majority opinion said SB54 “strikes an appropriate balance between protecting the interests of the state in managing elections” and allowing political parties and individuals “to express their preferences and values in a democratic fashion.”
It concludes, “Not only does this balance not offend our Constitution, it is at its very essence. Accordingly, we affirm” earlier decisions that upheld the law.
Anderson declined comment on the decision to appeal, saying the party central committee had taken decisions on the lawsuit out of his hands.
Anderson has been caught in the middle of a civil war of sorts over the issue between party conservatives — who hate SB54 because it weakens the power of convention delegates — and moderates, who say conventions dominated by the right wing choose nominees who are outside the political mainstream.
Anderson sparked a firestorm with conservatives when he tried to halt lawsuits over SB54, saying they had run up $410,000 in debt that threatened to bankrupt the party.
Eventually, Anderson and the party said that large donor Dave Bateman, CEO of the Entrata software company, agreed to cover the party’s legal debt and any costs of further appeals.
“No new party resources are being spent on this legal challenge, and all prior legal debts related to this legal fight have been resolved,” Guymon said Monday. “This enables us to keep the principled fight for every Utah citizen’s First Amendment freedoms alive.”
When the party lost its latest appeal, Gov. Gary Herbert said he hoped the party would stop further legal action, unify and support the election law — which he described as a reasonable compromise.
But Guymon said Monday, “The best way we can move beyond the divisiveness and strife is to repeal or overturn SB54 and return Utah politics to our neighborhoods and our founding principles,” by restoring the caucus-convention system as the sole path to the party nomination.
Disagreeing is Rich McKeown, executive co-chairman of Count My Vote. SB54 was created in 2014 to stop a ballot initiative that his group pushed that would have replaced the caucus-convention system with an open primary. The group this year is pushing a new initiative to cement into law the dual pathway to the ballot (convention or signature gathering) but reduce the number of signatures needed.
“The best way to stop divisiveness is to allow people to vote on that initiative,” he said, adding Count My Vote believes it has gathered the 113,000 signatures needed to appear on the November ballot.
More GOP appeals will also fail, McKeown predicts, because most recent decisions in similar cases “favor greater access to the ballot, and that is what SB54 is is all about, and what our efforts are all about.”
