It ain’t over till the fat lady sings.
And the fat lady has sung.
Or, to be more specific, the nine justices on the United States Supreme Court have denied the petition submitted last October in the case Utah Republican Party v. Spencer J. Cox, Lieutenant Governor of Utah.
The case sought review of the 10th Circuit Court of Appeals’ decision upholding the constitutionality of SB54 – the law passed in 2014 that created the election system we have now with dual paths to the primary election – signatures and/or convention.
The Republican-led Legislature passed SB54 over the cries of a majority of the GOP State Central Committee, who wanted to keep the caucus/convention system. And GOP Gov. Gary Herbert encouraged the party to sue.
So the GOP party sued the GOP-led state in federal court for violating its First Amendment right to associate freely. The argument was that the state should not be able to tell a private organization how to elect its representatives for the general election.
Especially repugnant, in a legal sense, was the idea that the Legislature passed SB54 in a direct attempt to elect more moderate candidates, or, to allow more moderate candidates to get to the primary election (through signature-gathering).
Because the government shouldn’t be picking political winners and losers.
The obviously unconstitutional part of SB54 was that it opened up all party primaries to unaffiliated voters. The law was already clear that a state could not force a private political party to allow non-members to vote in party primaries.
So the GOP secured a quick win in the district court on that issue.
But the GOP still claimed the government couldn’t mandate a dual path to the primary. The district court found that the GOP was wrong. It weighed the GOP’s First Amendment right of association against the state’s interest in managing and regulating elections, and since SB54 still allowed the party to use the convention route, the court found its interest was protected.
The GOP appealed to the United States Court of Appeals for the 10th Circuit. When it lost there, the GOP appealed to the Supreme Court.
And this past Monday, the Supreme Court announced it would not hear the case. That means that the 10th Circuit’s holding that SB54 is constitutional stands.
The GOP has been deeply divided over this case for years. Well, let me rephrase that. The GOP’s State Central Committee has been deeply divided over this case for years. Public polling was clear that GOP voters preferred the dual paths, which is why the internal upheaval has been so curious.
I wrote about the issue in August 2017 and in March 2018. To be transparent – I have a small conflict of interest. I appeared for the GOP as an attorney in the early days of the first case. I was not a fan of the Count My Vote “compromise,” for reasons I’ve belabored before.
But after the GOP lost in the Tenth Circuit, I recognized it was time to move on. First, because we lost the case legally. Second, because it used up resources we didn’t have. Third, and most importantly, we won a battle, but we were losing the war. In a big way.
Utah Republicans were sick and tired of seeing the party’s inner fighting and ineptitude. Sick. And. Tired.
Those who supported the lawsuit all the way until the end made a gallant and respectable effort. But it’s over. There is nowhere to go from here. You lost. Hold your head high and move on.
There have been rumblings that they’re going to keep fighting. That would be the worst decision ever. There’s no one to fight. The ring is empty. Purity panels won’t get you anywhere.
Republican state delegates should show up at county and state organizing conventions this spring and elect leaders who are going to move the party forward.
The dual paths aren’t that bad, after all. There is still a plurality problem that could be addressed, but the system is working. More citizens are getting involved. And more citizens are voting.
The irony, of course, is that even those hard-line anti-SB54ers used signature-gathering to protect their campaigns in case they didn’t make it out of convention.
Because for many, it’s not the principle but the spectacle.
Pass.
Michelle Quist
Michelle Quist is a columnist for The Salt Lake Tribune.
