An Unconstitutional Attack on the Utah Republican Party
"No one is bound to obey an unconstitutional law
and no courts are bound to enforce it."
According to the US Supreme Court; ”The General rule is that an unconstitutional statute, though having the form and name of law is in reality no law, but is wholly void, and ineffective for any purpose, since unconstitutionality dates from the time of its enactment and not merely from the date of the decision so branding it. An unconstitutional law, in legal contemplation, is as inoperative as if it had never been passed. Such a statute leaves the question that it purports to settle just as it would be had the statute not been enacted.”
It has been 5 years since many Utah House members recognized the problems with SB54 and sought to repeal the measure. In 2018, the original House sponsor of SB-54 flipped and sponsored House Bill 338, to essentially repeal SB-54. The House overwhelmingly passed the repeal bill with members expressing regret over SB54 and characterizing it as an “unmitigated disaster, but the bill was not considered by the cowardly Senate before the session ended, stopping us in our tracks.
We must work harder within the Utah Republican Party to vet and elect representatives willing to obey the Constitution and take our Party back from the big money special interests intent on destroying our Caucus/Convention system.
We must work harder within the Utah Republican Party to vet and elect representatives willing to obey the Constitution and take our Party back from the big money special interests intent on destroying our Caucus/Convention system.
SB-54
What I am about to share with you is a combination of real-life experience, observations, newspaper articles, judicial decision reasoning, research and of course my opinion. Nine years have passed since this calculated attack on our Republican Party’s constitutional right of association. I’m afraid if another nine years goes by without awareness and action by our Party to stand up for its unalienable rights, these rights may perish forever!
For many years, big money interests in the business wing of the Utah Republican Party have sought a way for their candidates to utilize the Party’s name on the general election ballot without having to deal with the Party’s "uncontrollable and unpredictable nominating process"...our Caucus/Convention system.
These folks believe the convention method gives “the most power and influence to those with the most extreme views,” presumably because only the most fervent and eager undertake the inconvenience of attending a caucus meeting.
In their view, this “extremism” is malicious because the Republican Party is the dominant party in Utah and its nominees are favored to win many district and state-wide elections in the general elections.
To confront this perceived problem with the Republican Party’s nominees, or in their words, to “require political party nominees to show a sufficiently broad level of support in order to appear on the general election ballot,” the group repeatedly asked the Party to change its nomination rules.
Specifically, they wanted the party to accept absentee votes at conventions and increase the number of votes required for candidates to secure the nomination at a convention. This way contested nominations would more often be decided with a primary election. Elections they are sure their money can control.
The Utah Republican Party refused. Undaunted, this special interest group registered their initiative and began efforts to persuade the Utah legislature to enact its desired reforms. If the Party did not comply, the group threatened to bring a ballot initiative to change the Party’s nomination rules against its will.
These facts set the stage... for our talk tonight.
These folks believe the convention method gives “the most power and influence to those with the most extreme views,” presumably because only the most fervent and eager undertake the inconvenience of attending a caucus meeting.
In their view, this “extremism” is malicious because the Republican Party is the dominant party in Utah and its nominees are favored to win many district and state-wide elections in the general elections.
To confront this perceived problem with the Republican Party’s nominees, or in their words, to “require political party nominees to show a sufficiently broad level of support in order to appear on the general election ballot,” the group repeatedly asked the Party to change its nomination rules.
Specifically, they wanted the party to accept absentee votes at conventions and increase the number of votes required for candidates to secure the nomination at a convention. This way contested nominations would more often be decided with a primary election. Elections they are sure their money can control.
The Utah Republican Party refused. Undaunted, this special interest group registered their initiative and began efforts to persuade the Utah legislature to enact its desired reforms. If the Party did not comply, the group threatened to bring a ballot initiative to change the Party’s nomination rules against its will.
These facts set the stage... for our talk tonight.
Big Money's Attack on our Republican Party’s Constitutional Rights
This a story of how big money interests tricked a Republican super majority in the Utah state Legislature to violate its own Party’s constitutional rights of association protected under the 1st and 14th Amendments.
In reality, these attacks on the party were orchestrated to provide the state legislature a chance to be the knight in shining armor and “save the caucus system” by passing SB-54. Most of the grassroots in the Party knew it was nothing more than a campaign mounted by special interests in the business wing of the Party and some powerful Democrats to gain greater control over our Republican Party’s nomination outcomes. We also recognized they were willing to spend as much money as necessary to displace grass roots participation in the process.
Something to remember before we get started...this case and the constitutional questions it raises, have never been settled by a court of competent jurisdiction on constitutional grounds. Leaving me to conclude...until the US Supreme Court weighs in...SB-54 is unconstitutional...here is my story.
HISTORY
For over 100 years, Utah election law gave political parties freedom to choose how they would nominate candidates for the general election. Parties could choose whether or not to use the state’s primary election mechanism or not. There were no restrictions...only choices.
With that freedom, the Utah Republican Party chose not to use the primary as its principal means of selecting candidates. Instead, the Party had, and continues to employ, a carefully crafted caucus/convention system as its nominating process.
In our caucus/convention system, the state is divided up into US Congressional Districts, State Senate Districts, State House of Representative Districts, Counties, and Cities. Each county then divides up their county into smaller chunks, called Precincts. (Every person within a precinct will have the exact same ballot, so the precincts can’t cross district, county, or city boundaries.) The size of each precinct varies.
The Party uses these precincts as the roots of their caucus system. Every two years, across the entire state, every precinct holds a caucus at the exact same time. (Making it impossible for someone to cheat and attend multiple caucuses.) In these meetings, open to the public, the neighbors who show up begin with a prayer, a recitation of the pledge of allegiance, and a reading of the Party’s platform.
Then they open nominations for delegates and listen to short speeches by neighbors who want to be delegates. They use the party platform as the litmus test as they decide which of their neighbors has the values and understandings that most closely align with party’s principle values (and their own personal values).
Only eligible voters registered as Republicans in that precinct will then vote on which of their neighbors most closely match their own value system and the party platform. Those with the most votes will become the delegates who will represent the precinct at the Party’s convention, where nominees will eventually be considered and selected for the ballot. Precinct attendees also vote on new Precinct leadership.
In reality, these attacks on the party were orchestrated to provide the state legislature a chance to be the knight in shining armor and “save the caucus system” by passing SB-54. Most of the grassroots in the Party knew it was nothing more than a campaign mounted by special interests in the business wing of the Party and some powerful Democrats to gain greater control over our Republican Party’s nomination outcomes. We also recognized they were willing to spend as much money as necessary to displace grass roots participation in the process.
Something to remember before we get started...this case and the constitutional questions it raises, have never been settled by a court of competent jurisdiction on constitutional grounds. Leaving me to conclude...until the US Supreme Court weighs in...SB-54 is unconstitutional...here is my story.
HISTORY
For over 100 years, Utah election law gave political parties freedom to choose how they would nominate candidates for the general election. Parties could choose whether or not to use the state’s primary election mechanism or not. There were no restrictions...only choices.
With that freedom, the Utah Republican Party chose not to use the primary as its principal means of selecting candidates. Instead, the Party had, and continues to employ, a carefully crafted caucus/convention system as its nominating process.
In our caucus/convention system, the state is divided up into US Congressional Districts, State Senate Districts, State House of Representative Districts, Counties, and Cities. Each county then divides up their county into smaller chunks, called Precincts. (Every person within a precinct will have the exact same ballot, so the precincts can’t cross district, county, or city boundaries.) The size of each precinct varies.
The Party uses these precincts as the roots of their caucus system. Every two years, across the entire state, every precinct holds a caucus at the exact same time. (Making it impossible for someone to cheat and attend multiple caucuses.) In these meetings, open to the public, the neighbors who show up begin with a prayer, a recitation of the pledge of allegiance, and a reading of the Party’s platform.
Then they open nominations for delegates and listen to short speeches by neighbors who want to be delegates. They use the party platform as the litmus test as they decide which of their neighbors has the values and understandings that most closely align with party’s principle values (and their own personal values).
Only eligible voters registered as Republicans in that precinct will then vote on which of their neighbors most closely match their own value system and the party platform. Those with the most votes will become the delegates who will represent the precinct at the Party’s convention, where nominees will eventually be considered and selected for the ballot. Precinct attendees also vote on new Precinct leadership.
The Party’s nominating conventions are also open to the public. After candidates or their representatives make nomination speeches, credentialed delegates cast their votes for candidates to each office. The Utah Republican Party developed this convention-based nomination process over the years to ensure the selection of nominees who will best represent the Party’s platform.
The Utah Republican Party candidate qualification requirements, like its nomination procedures, are designed to make certain that nominees are committed to the Party’s platform. All candidates must file a statement certifying that they do not hold a position in any other political party. They must also certify they have read the Party’s platform and accept it as the standard by which their performance as an officeholder will be evaluated.
As an additional security measure against the possibility of unfaithful nominees, the Party’s bylaws require nominees to certify they will abide by the Party’s nomination procedures. These procedures do not allow for any method to gain the nomination other than competition in the Party’s convention.
The Utah Republican Party candidate qualification requirements, like its nomination procedures, are designed to make certain that nominees are committed to the Party’s platform. All candidates must file a statement certifying that they do not hold a position in any other political party. They must also certify they have read the Party’s platform and accept it as the standard by which their performance as an officeholder will be evaluated.
As an additional security measure against the possibility of unfaithful nominees, the Party’s bylaws require nominees to certify they will abide by the Party’s nomination procedures. These procedures do not allow for any method to gain the nomination other than competition in the Party’s convention.
The Party’s nominating process, a manifestation of its First Amendment right of association, employs representative democracy to limit the need for money—and thus limit the influence of monied special interests.
The caucus/convention system is a Republic System and Utah is one of the last states in the union to utilize it. It’s simple but effective. Neighborhood representatives, democratically elected by Party members in public meetings, are delegated responsibility to represent the neighborhood’s Party members in vetting nomination seekers and then subsequently selecting the Party’s nominees at a Party nominating convention.
This approach enables—and thus demands—personal interaction between those seeking Party nomination and all of those voting for Party nominees, which empowers average citizens— both as voters and as candidates—and works against nomination seekers who lack substance, who seek to avoid their voting records, or who don’t agree with and won’t work to advance the Party’s principles.
The Republican Party’s preference for selecting nominees by prioritizing direct interaction between candidates and constituents is a classic example of an associative right protected by the First Amendment.
The caucus/convention system is a Republic System and Utah is one of the last states in the union to utilize it. It’s simple but effective. Neighborhood representatives, democratically elected by Party members in public meetings, are delegated responsibility to represent the neighborhood’s Party members in vetting nomination seekers and then subsequently selecting the Party’s nominees at a Party nominating convention.
This approach enables—and thus demands—personal interaction between those seeking Party nomination and all of those voting for Party nominees, which empowers average citizens— both as voters and as candidates—and works against nomination seekers who lack substance, who seek to avoid their voting records, or who don’t agree with and won’t work to advance the Party’s principles.
The Republican Party’s preference for selecting nominees by prioritizing direct interaction between candidates and constituents is a classic example of an associative right protected by the First Amendment.
How It All Started
Back in 2008, Congress passed the Troubled Asset Relief Program, or TARP. TARP was a U.S. economic program designed to ward off the nation’s mortgage and financial crisis, known as the Great Recession. Signed on October 3, 2008, by President George W. Bush, TARP allowed the Department of the Treasury to pump money into failing banks and other businesses by purchasing assets and equity.
Referred to by some as a “bank bailout,” TARP sparked much criticism from Republicans and conservatives who felt this bailout was not the proper role of government. Many citizens across the US agreed and Congress’s approval rating tanked...yet almost all were re-elected.
Think about it, how is it that the congressional approval rating after the 2008 TARP bailout was at 9%, yet the congressional reelection rate for the next 2 election cycles was 96%? Does that make any sense at all?
There was only one state in the nation where that wasn’t the case. You guessed it...Utah.
Referred to by some as a “bank bailout,” TARP sparked much criticism from Republicans and conservatives who felt this bailout was not the proper role of government. Many citizens across the US agreed and Congress’s approval rating tanked...yet almost all were re-elected.
Think about it, how is it that the congressional approval rating after the 2008 TARP bailout was at 9%, yet the congressional reelection rate for the next 2 election cycles was 96%? Does that make any sense at all?
There was only one state in the nation where that wasn’t the case. You guessed it...Utah.
In Utah the re-election rate was much lower. Rep Chris Cannon (R) and Senator Bob Bennett (R) both voted for TARP and both lost their re-election bids. Cannon, a sitting House Rep, was primaried in 2oo8 when Jason Chaffetz came within 9 votes of eliminating him at convention and becoming the general election nominee. The final tally was Chaffetz 59%, Cannon 41%. Chaffetz went on to beat Cannon in the primary and win the House seat in the general election.
In 2010, as Chairman of the Senate Banking Committee, Bennett's political career ended just after 3 P.M. local time at the convention in downtown Salt Lake City, when the Republican state delegates eliminated him as a candidate. With TARP on their minds, only 27 percent of the 3,500 delegates supported him. Tim Bridgewater and Mike Lee finished 1 2 and both went on to the primary where Mike Lee won and then captured the Senate seat in the general election.
Interestingly, Rep Rob Bishop (R) and Rep Jim Matheson(D) both voted against TARP and were both re-elected. Seems TARP wasn’t what Utah voters wanted and the Caucus system delivered! The lesson here is for our elected representatives to listen carefully to their constituents...and legislate their will.
Why was Utah able to remove the incumbents who had voted for TARP, but the other states weren’t able to remove their representatives who had?
Because of the vigorous vetting process of the Utah caucus system!
In 2010, as Chairman of the Senate Banking Committee, Bennett's political career ended just after 3 P.M. local time at the convention in downtown Salt Lake City, when the Republican state delegates eliminated him as a candidate. With TARP on their minds, only 27 percent of the 3,500 delegates supported him. Tim Bridgewater and Mike Lee finished 1 2 and both went on to the primary where Mike Lee won and then captured the Senate seat in the general election.
Interestingly, Rep Rob Bishop (R) and Rep Jim Matheson(D) both voted against TARP and were both re-elected. Seems TARP wasn’t what Utah voters wanted and the Caucus system delivered! The lesson here is for our elected representatives to listen carefully to their constituents...and legislate their will.
Why was Utah able to remove the incumbents who had voted for TARP, but the other states weren’t able to remove their representatives who had?
Because of the vigorous vetting process of the Utah caucus system!
Trouble Brewing in the Republican Party
After the defeat of the two incumbents who had voted for TARP, a bipartisan group registered as the Utah Political Issues Committee Alliance for Good Government but known popularly as Count My Vote (CMV), began looking at alternative ways of getting party endorsement for their candidates without having to deal with the parties’ caucus and convention procedures.
Frustrated, they continued to fiercely lobby the Republican Party to change its nomination procedures to their advantage.
CMV believed the convention method gave “the most power and influence to the “little people” who in their mind held the most extreme views, presumably because only the most fervent and eager undertake the inconvenience of attending a caucus meeting.
In its view, this “extremism” was malicious because too many of the “little people” had learned about the caucus system and started coming out in an effort to do something about runaway government. The Tea Party was born.
(This is precisely why today; Weber County Conservatives is dedicated to the education and training of our elected representatives within the Party. As demonstrated here, we have the power to hold our elected officials accountable.)
For CMV, there was more work to do...after losing both of their incumbents, CMV worked extra hard to make sure the other incumbent who voted for TARP didn’t lose his reelection bid in 2012. In order to do this, they had to use the incumbent’s large war chest of campaign contributions in an attempt to stack the caucuses with people who would support the incumbent.
Working with CMV, Senator Hatch’s campaign spent about $5.65 million prior to the 2012 caucuses in order to stack them in his favor. (And they did a really good job, flooding the caucuses with trained Hatch supporters running for delegate positions claiming if Hatch goes, so does Hill Air Force Base. Hatch even provided free quality cowboy hats to all of the delegates at convention.)
However, in spite of spending over $5.6 million to stack the caucuses, Senator Hatch was forced into his first primary since he was elected in 1976. Whether you like Hatch or not, the fact that he could not outright buy the nomination at convention again shows the power of the Utah caucus/convention system.
CMV was angry at losing their incumbents and were not happy that it was so difficult and expensive to get a 6-term senator elected to his 7th term. (That’s 42 years in office without a primary). So, they put their minds together and came up with a plan to change the Republican Party’s nomination rules. If the Party did not comply, the group threatened to bring a ballot initiative to change the Party’s nomination rules against its will.
Frustrated, they continued to fiercely lobby the Republican Party to change its nomination procedures to their advantage.
CMV believed the convention method gave “the most power and influence to the “little people” who in their mind held the most extreme views, presumably because only the most fervent and eager undertake the inconvenience of attending a caucus meeting.
In its view, this “extremism” was malicious because too many of the “little people” had learned about the caucus system and started coming out in an effort to do something about runaway government. The Tea Party was born.
(This is precisely why today; Weber County Conservatives is dedicated to the education and training of our elected representatives within the Party. As demonstrated here, we have the power to hold our elected officials accountable.)
For CMV, there was more work to do...after losing both of their incumbents, CMV worked extra hard to make sure the other incumbent who voted for TARP didn’t lose his reelection bid in 2012. In order to do this, they had to use the incumbent’s large war chest of campaign contributions in an attempt to stack the caucuses with people who would support the incumbent.
Working with CMV, Senator Hatch’s campaign spent about $5.65 million prior to the 2012 caucuses in order to stack them in his favor. (And they did a really good job, flooding the caucuses with trained Hatch supporters running for delegate positions claiming if Hatch goes, so does Hill Air Force Base. Hatch even provided free quality cowboy hats to all of the delegates at convention.)
However, in spite of spending over $5.6 million to stack the caucuses, Senator Hatch was forced into his first primary since he was elected in 1976. Whether you like Hatch or not, the fact that he could not outright buy the nomination at convention again shows the power of the Utah caucus/convention system.
CMV was angry at losing their incumbents and were not happy that it was so difficult and expensive to get a 6-term senator elected to his 7th term. (That’s 42 years in office without a primary). So, they put their minds together and came up with a plan to change the Republican Party’s nomination rules. If the Party did not comply, the group threatened to bring a ballot initiative to change the Party’s nomination rules against its will.
Selling their Initiative
The Republican Party refused. Undaunted, Count My Vote launched its scheme by registering its initiative and doing what it does best...spreading big money around in their efforts to persuade the Utah legislature to enact its desired reforms.
During this process, CMV threatened the Utah GOP State Central Committee (SCC) that they needed to increase the threshold at convention so there were MORE primaries. (And so, it would be harder to defeat an incumbent. You see, only incumbents would likely ever reach the higher threshold to avoid a primary.) They threatened the SCC that if they didn’t raise the threshold to 70% to make the general election, CMV would hit the gas on its ballot initiative for a dual path to the primary ballot. Essentially crushing the Caucus system.
Then, rather than wait to see if the SCC would raise the threshold, they sent a threatening email to SCC members the night before the big vote. Like a blackmailer who keeps demanding more and more, the email stated that the threshold increase was not their only demand, and they stated their additional demands, including extended caucus over more than one day, absentee voting for caucus, etc. (Note: With SB-54 in their back pocket, they were even requesting that the Party not just make these changes internally, but that there had to be legislation to force the Party to make these changes.) Because of these additional demands, even members who were planning on voting for the threshold increase ended up voting against it, so it failed. The SCC voted on it a couple more times and even the state delegates voted on it, but it failed every time. CMV was livid!
CMV had big money. In 2013 alone, they raised $810,902 through its fundraising arm, the Alliance for Good Government. At the time that was more than any other political group or candidate and 88 times as much as an opposing group.
They had been doing a lot of work with this money and found that people wouldn’t support a ballot initiative with a dual path to the ballot, because they said, the average person, you know, “the little people” couldn’t understand it. In their efforts, they discovered that people would be more supportive of a direct primary that was sold to them as “making their vote count.” Everybody wants their vote to count, right? It was a no-brainer!
However, the direct primary wasn’t what CMV really wanted, but they used the people who would support the direct primary as pawns in their real scheme. They were gathering signatures, but even their great selling feature of making your vote count wasn’t enough. So, they started lying to people to get them to sign the ballot initiative.
One patriot recorded her conversation with a paid signature gatherer for CMV. They told her the petition was to stop schools from throwing out kids’ school lunches. The folks signed immediately.
Some groups were disputing the legitimacy of the signatures and requested that the Lt Governor’s office investigate the fraud. ...Crickets...
Many complaints claim Count My Vote collected signatures in violation of the law. Keep My Voice, a pro-Caucus group even sponsored an initiative to allow people to remove their names from the CMV list, and many did once they better understood the facts. This effort resulted in enough citizens removing their names from the initiative that it fell short of the required signatures. These guys were not used to a fight!
During this process, CMV threatened the Utah GOP State Central Committee (SCC) that they needed to increase the threshold at convention so there were MORE primaries. (And so, it would be harder to defeat an incumbent. You see, only incumbents would likely ever reach the higher threshold to avoid a primary.) They threatened the SCC that if they didn’t raise the threshold to 70% to make the general election, CMV would hit the gas on its ballot initiative for a dual path to the primary ballot. Essentially crushing the Caucus system.
Then, rather than wait to see if the SCC would raise the threshold, they sent a threatening email to SCC members the night before the big vote. Like a blackmailer who keeps demanding more and more, the email stated that the threshold increase was not their only demand, and they stated their additional demands, including extended caucus over more than one day, absentee voting for caucus, etc. (Note: With SB-54 in their back pocket, they were even requesting that the Party not just make these changes internally, but that there had to be legislation to force the Party to make these changes.) Because of these additional demands, even members who were planning on voting for the threshold increase ended up voting against it, so it failed. The SCC voted on it a couple more times and even the state delegates voted on it, but it failed every time. CMV was livid!
CMV had big money. In 2013 alone, they raised $810,902 through its fundraising arm, the Alliance for Good Government. At the time that was more than any other political group or candidate and 88 times as much as an opposing group.
They had been doing a lot of work with this money and found that people wouldn’t support a ballot initiative with a dual path to the ballot, because they said, the average person, you know, “the little people” couldn’t understand it. In their efforts, they discovered that people would be more supportive of a direct primary that was sold to them as “making their vote count.” Everybody wants their vote to count, right? It was a no-brainer!
However, the direct primary wasn’t what CMV really wanted, but they used the people who would support the direct primary as pawns in their real scheme. They were gathering signatures, but even their great selling feature of making your vote count wasn’t enough. So, they started lying to people to get them to sign the ballot initiative.
One patriot recorded her conversation with a paid signature gatherer for CMV. They told her the petition was to stop schools from throwing out kids’ school lunches. The folks signed immediately.
Some groups were disputing the legitimacy of the signatures and requested that the Lt Governor’s office investigate the fraud. ...Crickets...
Many complaints claim Count My Vote collected signatures in violation of the law. Keep My Voice, a pro-Caucus group even sponsored an initiative to allow people to remove their names from the CMV list, and many did once they better understood the facts. This effort resulted in enough citizens removing their names from the initiative that it fell short of the required signatures. These guys were not used to a fight!
Senator Curt Bramble
Didn’t matter...the plan was working perfectly. “Useful idiot” State Senator Curt Bramble to the rescue. He drafted some legislation, SB54, which he ran during the 2014 state legislature. It included the entire CMV petition language and also the option to bypass the direct primary by using a dual path to the ballot. (Exactly what CMV had told the SCC they wanted in 2013.)
They called it a “compromise”. Without SB54 the CMV Initiative would end the Caucus system and replace it with a direct primary. If SB-54 passed, it would “save the caucus system” by allowing for both signatures and conventions. It is important to note the Utah Republican Party was not invited to participate in the negotiation of this so called “compromise.” It was exactly what CMV wanted to do to make it harder to unseat their incumbents and Mr. Bramble was happy to oblige. For this reason, SB-54 was labeled the “incumbent protection act.” By allowing candidates to bypass the Caucus/Convention system they could cruse to the general election as an incumbent with an R behind their name without delegate scrutiny. Relying on an uninformed population, money would be their path to office.
As SB54 started gaining momentum, CMV pretended they were against it. (You know, don’t throw me in the briar patch!) The SCC did not support the legislation and asked Bramble & the state legislature not to run it. The Party should have demanded, not asked! They ran the legislation anyway convinced they were “saving the caucus system.”
In a closed meeting Senator Bramble told the SCC that his bill would make it easier for the party to sue. Why, because he said that he made it non-severable, so when they filed a lawsuit against the state for passing unconstitutional legislation, the whole thing would be tossed out if they found even one part that was unconstitutional.
After assuring the SCC the bill was non-severable, two days later an amendment to the Bill was introduced on the floor changing SB54’s non-severability... passed by the legislature, it was now severable. Meaning if any part was found unconstitutional, the law would survive absent that part. Bramble lied to the SCC to execute his blatant bait and switch...all to CMV’s delight and the Utah Republican Party’s humiliation.
Bramble sold the bill to legislators as “saving the caucus system”, but the SCC knew that in reality it was gutting our caucus system. It created the dual path to the primary ballot with signatures, which renders the caucus system irrelevant. Many in the Party begged legislators not to pass it, but the legislators didn’t listen.
As the CMV pretended to be against it, in reality they knew it gave them everything they wanted and more. It also gave them the direct primary that Bramble threw in as a bonus. Even Rich McKeown of CMV admits that SB54 was “exactly” what they “aspired from the beginning”.
SB54 was signed into law on March 10, 2014, completely overhauling the requirements political parties must meet to have their nominees placed on Utah’s general election ballot. No longer are political parties in Utah free to select their nomination procedures.
SB54 not only interferes with the Utah Republican Party’s internal procedures, but it also changed the types of nominees our Party must allow and gives unwanted candidates a path to the Party’s nomination.
SB54 has caused divisiveness within our Party, reducing a candidate’s loyalty to the Party’s policies. Put together, these consequences severely burden the Party’s ability to choose a loyal nominee and, ultimately, its right to define itself and its message.
The law is, in effect, a state-created majority veto over the candidates our party selects through its carefully crafted convention process. And it gives aspiring candidates license to ignore the Party’s chosen convention procedures without ever having to convince other members to vote to change those procedures.
These changes to our internal nominee selection process affect our ability to define ourselves. They changed the very substance of our organization.
All group’s leadership-selection procedures help define its substance—whether hierarchical, uber-democratic, or a mix. This defining choice is, constitutionally, up to each group. Here, SB54 has substantively altered our Party’s character.
They called it a “compromise”. Without SB54 the CMV Initiative would end the Caucus system and replace it with a direct primary. If SB-54 passed, it would “save the caucus system” by allowing for both signatures and conventions. It is important to note the Utah Republican Party was not invited to participate in the negotiation of this so called “compromise.” It was exactly what CMV wanted to do to make it harder to unseat their incumbents and Mr. Bramble was happy to oblige. For this reason, SB-54 was labeled the “incumbent protection act.” By allowing candidates to bypass the Caucus/Convention system they could cruse to the general election as an incumbent with an R behind their name without delegate scrutiny. Relying on an uninformed population, money would be their path to office.
As SB54 started gaining momentum, CMV pretended they were against it. (You know, don’t throw me in the briar patch!) The SCC did not support the legislation and asked Bramble & the state legislature not to run it. The Party should have demanded, not asked! They ran the legislation anyway convinced they were “saving the caucus system.”
In a closed meeting Senator Bramble told the SCC that his bill would make it easier for the party to sue. Why, because he said that he made it non-severable, so when they filed a lawsuit against the state for passing unconstitutional legislation, the whole thing would be tossed out if they found even one part that was unconstitutional.
After assuring the SCC the bill was non-severable, two days later an amendment to the Bill was introduced on the floor changing SB54’s non-severability... passed by the legislature, it was now severable. Meaning if any part was found unconstitutional, the law would survive absent that part. Bramble lied to the SCC to execute his blatant bait and switch...all to CMV’s delight and the Utah Republican Party’s humiliation.
Bramble sold the bill to legislators as “saving the caucus system”, but the SCC knew that in reality it was gutting our caucus system. It created the dual path to the primary ballot with signatures, which renders the caucus system irrelevant. Many in the Party begged legislators not to pass it, but the legislators didn’t listen.
As the CMV pretended to be against it, in reality they knew it gave them everything they wanted and more. It also gave them the direct primary that Bramble threw in as a bonus. Even Rich McKeown of CMV admits that SB54 was “exactly” what they “aspired from the beginning”.
SB54 was signed into law on March 10, 2014, completely overhauling the requirements political parties must meet to have their nominees placed on Utah’s general election ballot. No longer are political parties in Utah free to select their nomination procedures.
SB54 not only interferes with the Utah Republican Party’s internal procedures, but it also changed the types of nominees our Party must allow and gives unwanted candidates a path to the Party’s nomination.
SB54 has caused divisiveness within our Party, reducing a candidate’s loyalty to the Party’s policies. Put together, these consequences severely burden the Party’s ability to choose a loyal nominee and, ultimately, its right to define itself and its message.
The law is, in effect, a state-created majority veto over the candidates our party selects through its carefully crafted convention process. And it gives aspiring candidates license to ignore the Party’s chosen convention procedures without ever having to convince other members to vote to change those procedures.
These changes to our internal nominee selection process affect our ability to define ourselves. They changed the very substance of our organization.
All group’s leadership-selection procedures help define its substance—whether hierarchical, uber-democratic, or a mix. This defining choice is, constitutionally, up to each group. Here, SB54 has substantively altered our Party’s character.
Caucus in action
Our neighborhood caucus meetings are a communitarian affair—with shared prayer, competition for delegate slots, and local electioneering in support or opposition to candidates and platform recommendations.
Under SB54, candidates can evade the scrutiny of delegates chosen at these meetings, ignoring the caucus system altogether. In effect, the new procedures transform our Party from a tight-knit community that chooses candidates deliberatively to a loosely affiliated collection of individuals who cast votes on a Tuesday in June.
SB54 has changed the types of candidates the Party nominates. That was precisely the purpose of the law’s promoter, Count My Vote. A nomination process filtered through a convention of party regulars will generate different candidates than one accomplished by polling the crowds, among whom are many persons who only nominally associate with the Party.
Count My Vote understood this. So does the Party. Whether it makes candidates more moderate, as Count My Vote would have it, or allows for more extreme candidates divorced from the influence of party leadership, the signature gathering path to nomination has produced nominees and nominee positions other than those our Party would choose if left to our own devices.
Additionally, SB54 violates our Party’s right not to associate with an unwanted candidate, a corollary of our right to associate. “In no area is the political association’s right to exclude more important than in the process of selecting its nominee.” Yet under SB54, a person who collects signatures can be named our Party’s nominee in spite of the fact that he or she has broken our Party’s rules regarding how to seek the nomination.
What is more, this Count My Vote scheme allows nominal members or even members hostile to our Party’s policies to hijack our platform. So long as a person has the means (by fame, fortune or allegiance to special interests) to obtain the requisite number of signatures, he or she can challenge our Party’s chosen convention candidate in a primary election, where cash is king...and they have the cash!
This is a huge burden on our Party’s right of dissociation, for the spoils of winning the primary are not just a place on the general election ballot (which can be obtained as an unaffiliated candidate). The real spoils are a place on the ballot as our Party’s nominee. There is no reason to believe that grass roots, insurgent candidates are more likely to be the more centrist nominee. One only need look around at a few recent elections at every level to know that claim is dubious.
As even counsel for the Utah Democrat Party admitted at oral argument, that presents a “[California Democratic Party v.] Jones problem,” because it is the kind of violation of the freedom not to associate that the Supreme Court condemned in Jones in 2000. In that case, California enacted a partisan blanket primary in which all voters, regardless of party affiliation, could vote for any party’s nominees. The Court held that scheme unconstitutional in part because it created the possibility parties would be “saddled with an unwanted, and possibly antithetical, nominee.”
Forcing our Party to accept nominees who circumvent our chosen nomination method by appealing to members at the fringes of the Party accomplishes the same thing. It can “saddle” the Party with a nominee who is “antithetical” to the integrity of the Party and its long-term message.
SB54 continues to cause divisiveness within our Party’s ranks. A face-off between our chosen convention candidate and a signature-gathering insurgent has created rifts among our Party’s members. Fueling intra-party strife endangers an association’s very existence almost as much as the inability to exclude. Neither houses divided nor houses without walls can stand.
SB54 continues to undermine “the loyalty of candidates to party policies” by “putting candidates in a more independent position vis-à-vis our party and our leadership.” “When their nomination depends on the general electorate rather than on the party faithful,” it is less likely that “party nominees will be equally observant of internal party procedures and equally respectful of party discipline.”
The same logic applies here. While only party members can vote in the party’s primary, not all members are the same. As the Supreme Court recognized, “the act of formal enrollment or public affiliation with the Party is merely one element in the continuum of participation in Party affairs and need not be in any sense the most important.”
SB54 continues to force our Party to include people who only marginally identify with the party in its nomination decisions. This change has reduced candidates’ loyalty to the Party relative to our Party’s preferred convention process. A candidate may still formally have to certify agreement with our Party’s policies, but faithful delegates are no longer able to hold rogue candidates accountable.
And because more than two candidates may end up running in the primary election and split the vote, a person can gain the nomination with plurality of the vote—intensifying the risk that a nominee will be disloyal to our Party platform.
I submit that SB54 was not a compromise. It was a setup from the beginning, fostered by CMV money and Bramble’s lies. The signatures gathered by telling lies were just used as leverage to scare other legislators to vote for the bad bill in order to “save” the caucus system. Some of these legislators have received nice campaign contributions from CMV for their help in passing the “Incumbent Protection Act” – SB54, and many have since regretted their support.
Under SB54, candidates can evade the scrutiny of delegates chosen at these meetings, ignoring the caucus system altogether. In effect, the new procedures transform our Party from a tight-knit community that chooses candidates deliberatively to a loosely affiliated collection of individuals who cast votes on a Tuesday in June.
SB54 has changed the types of candidates the Party nominates. That was precisely the purpose of the law’s promoter, Count My Vote. A nomination process filtered through a convention of party regulars will generate different candidates than one accomplished by polling the crowds, among whom are many persons who only nominally associate with the Party.
Count My Vote understood this. So does the Party. Whether it makes candidates more moderate, as Count My Vote would have it, or allows for more extreme candidates divorced from the influence of party leadership, the signature gathering path to nomination has produced nominees and nominee positions other than those our Party would choose if left to our own devices.
Additionally, SB54 violates our Party’s right not to associate with an unwanted candidate, a corollary of our right to associate. “In no area is the political association’s right to exclude more important than in the process of selecting its nominee.” Yet under SB54, a person who collects signatures can be named our Party’s nominee in spite of the fact that he or she has broken our Party’s rules regarding how to seek the nomination.
What is more, this Count My Vote scheme allows nominal members or even members hostile to our Party’s policies to hijack our platform. So long as a person has the means (by fame, fortune or allegiance to special interests) to obtain the requisite number of signatures, he or she can challenge our Party’s chosen convention candidate in a primary election, where cash is king...and they have the cash!
This is a huge burden on our Party’s right of dissociation, for the spoils of winning the primary are not just a place on the general election ballot (which can be obtained as an unaffiliated candidate). The real spoils are a place on the ballot as our Party’s nominee. There is no reason to believe that grass roots, insurgent candidates are more likely to be the more centrist nominee. One only need look around at a few recent elections at every level to know that claim is dubious.
As even counsel for the Utah Democrat Party admitted at oral argument, that presents a “[California Democratic Party v.] Jones problem,” because it is the kind of violation of the freedom not to associate that the Supreme Court condemned in Jones in 2000. In that case, California enacted a partisan blanket primary in which all voters, regardless of party affiliation, could vote for any party’s nominees. The Court held that scheme unconstitutional in part because it created the possibility parties would be “saddled with an unwanted, and possibly antithetical, nominee.”
Forcing our Party to accept nominees who circumvent our chosen nomination method by appealing to members at the fringes of the Party accomplishes the same thing. It can “saddle” the Party with a nominee who is “antithetical” to the integrity of the Party and its long-term message.
SB54 continues to cause divisiveness within our Party’s ranks. A face-off between our chosen convention candidate and a signature-gathering insurgent has created rifts among our Party’s members. Fueling intra-party strife endangers an association’s very existence almost as much as the inability to exclude. Neither houses divided nor houses without walls can stand.
SB54 continues to undermine “the loyalty of candidates to party policies” by “putting candidates in a more independent position vis-à-vis our party and our leadership.” “When their nomination depends on the general electorate rather than on the party faithful,” it is less likely that “party nominees will be equally observant of internal party procedures and equally respectful of party discipline.”
The same logic applies here. While only party members can vote in the party’s primary, not all members are the same. As the Supreme Court recognized, “the act of formal enrollment or public affiliation with the Party is merely one element in the continuum of participation in Party affairs and need not be in any sense the most important.”
SB54 continues to force our Party to include people who only marginally identify with the party in its nomination decisions. This change has reduced candidates’ loyalty to the Party relative to our Party’s preferred convention process. A candidate may still formally have to certify agreement with our Party’s policies, but faithful delegates are no longer able to hold rogue candidates accountable.
And because more than two candidates may end up running in the primary election and split the vote, a person can gain the nomination with plurality of the vote—intensifying the risk that a nominee will be disloyal to our Party platform.
I submit that SB54 was not a compromise. It was a setup from the beginning, fostered by CMV money and Bramble’s lies. The signatures gathered by telling lies were just used as leverage to scare other legislators to vote for the bad bill in order to “save” the caucus system. Some of these legislators have received nice campaign contributions from CMV for their help in passing the “Incumbent Protection Act” – SB54, and many have since regretted their support.
What's Next
In 2015, the UTAH REPUBLICAN PARTY filed suit seeking an injunction and declaratory judgment that the law was unconstitutional as applied to the Utah Republican Party (the “First Lawsuit”). The Constitutional Party of Utah (“CPU”) joined the First Lawsuit, challenging the Signature Requirement in particular.
In the First Lawsuit, the district court denied the Utah Republican Party and the CPU a preliminary injunction, ruling that none of the alleged constitutional burdens were severe save for the Unaffiliated Voter Provision.
The court held that the Unaffiliated Voter Provision imposed a severe burden on the Utah Republican Party's associational rights, and the State had no compelling interest to justify that burden.
The practical effect of the First Lawsuit, then, was to invalidate SB54’s Unaffiliated Voter Provision, while upholding the Signature Requirement, and all other aspects of SB54. It’s important to note here that if Bramble hadn’t pulled off his bait and switch on severability, this very first ruling against SB-54’s Unaffiliated Voter Provision would have rendered the entire law unconstitutional.
With the court’s decision in favor of SB-54, political parties in Utah are no longer free to select their nomination procedures. “Each registered political party that chooses to have the names of the registered political party’s candidates for elective office featured with party affiliation on the ballot at a regular general election,” the bill provides, “shall nominate the registered political party’s candidates for elective office in the manner described in SB-54.”
The bill creates two possible paths for political parties to earn the right to place their endorsements on the ballot—they can be “registered political parties” or “qualified political parties.” For “registered political parties”, participation in the primary is mandatory.
According to SB-54, each registered political party” must “either declare the registered political party’s intent to participate in the next regular primary election” or declare that it chooses “not to have the names of the registered political party’s candidates for elective office featured on the ballot at the next regular general election.” So, play ball or you cannot place your candidate and the party’s endorsement on our ballot.
To earn a place on the primary ballot, candidates for a registered political party have one choice only, collect signatures: that is to collect nomination petitions from “at least 2% of the registered political party’s members who reside in the political division” for the office sought.
A “qualified political party,” by contrast, is allowed to use a convention to select nominees. But this comes at a cost. Qualified political parties must permit delegates to vote by absentee ballot. And they must allow members to seek nomination either by using the party’s convention or by collecting a statutorily designated number of signatures (which varies by office), or both.
This is called the “Either or Both” provision. Whenever there is at least one candidate chosen by convention and at least one who gained candidacy for the same office by collecting signatures, a qualified political party must participate in a primary election to choose between them. Both candidates carry the R behind their name on the printed ballot but only one candidate is endorsed by a majority of the Party’s elected delegates.
The same is true when there are two or more people who gained candidacy for the same office by collecting signatures. Unlike registered political parties, qualified political parties do not necessarily have to participate in the primary election. They only must do so when there are persons who gathered signatures to become candidates running against the convention winner.
Candidates who obtain “the highest number of votes” in the primary election, regardless of whether they gained candidacy by convention or signature collection, are deemed “nominated for that office by the candidate’s registered political party.” Parties cannot opt out of this scheme while still retaining their ability to list their affiliation with candidates on the ballot. (Talk about this).
In the First Lawsuit, the district court denied the Utah Republican Party and the CPU a preliminary injunction, ruling that none of the alleged constitutional burdens were severe save for the Unaffiliated Voter Provision.
The court held that the Unaffiliated Voter Provision imposed a severe burden on the Utah Republican Party's associational rights, and the State had no compelling interest to justify that burden.
The practical effect of the First Lawsuit, then, was to invalidate SB54’s Unaffiliated Voter Provision, while upholding the Signature Requirement, and all other aspects of SB54. It’s important to note here that if Bramble hadn’t pulled off his bait and switch on severability, this very first ruling against SB-54’s Unaffiliated Voter Provision would have rendered the entire law unconstitutional.
With the court’s decision in favor of SB-54, political parties in Utah are no longer free to select their nomination procedures. “Each registered political party that chooses to have the names of the registered political party’s candidates for elective office featured with party affiliation on the ballot at a regular general election,” the bill provides, “shall nominate the registered political party’s candidates for elective office in the manner described in SB-54.”
The bill creates two possible paths for political parties to earn the right to place their endorsements on the ballot—they can be “registered political parties” or “qualified political parties.” For “registered political parties”, participation in the primary is mandatory.
According to SB-54, each registered political party” must “either declare the registered political party’s intent to participate in the next regular primary election” or declare that it chooses “not to have the names of the registered political party’s candidates for elective office featured on the ballot at the next regular general election.” So, play ball or you cannot place your candidate and the party’s endorsement on our ballot.
To earn a place on the primary ballot, candidates for a registered political party have one choice only, collect signatures: that is to collect nomination petitions from “at least 2% of the registered political party’s members who reside in the political division” for the office sought.
A “qualified political party,” by contrast, is allowed to use a convention to select nominees. But this comes at a cost. Qualified political parties must permit delegates to vote by absentee ballot. And they must allow members to seek nomination either by using the party’s convention or by collecting a statutorily designated number of signatures (which varies by office), or both.
This is called the “Either or Both” provision. Whenever there is at least one candidate chosen by convention and at least one who gained candidacy for the same office by collecting signatures, a qualified political party must participate in a primary election to choose between them. Both candidates carry the R behind their name on the printed ballot but only one candidate is endorsed by a majority of the Party’s elected delegates.
The same is true when there are two or more people who gained candidacy for the same office by collecting signatures. Unlike registered political parties, qualified political parties do not necessarily have to participate in the primary election. They only must do so when there are persons who gathered signatures to become candidates running against the convention winner.
Candidates who obtain “the highest number of votes” in the primary election, regardless of whether they gained candidacy by convention or signature collection, are deemed “nominated for that office by the candidate’s registered political party.” Parties cannot opt out of this scheme while still retaining their ability to list their affiliation with candidates on the ballot. (Talk about this).
One might ask, why would a Super Majority Republican legislature be concerned with how, the Utah Republican Party selects its candidates for primary elections? Because providing an alternative signature-gathering path allows any declared Republican candidates, who are unable or unwilling to gain approval from the Republican party nominating conventions, guaranteed access to the primary ballot where they can buy their way into political office.
THE INCUMBENT PROTECTION ACT in all of its glory!
Under their appeal, the Utah Republican Party argued Utah’s recent reforms under SB54 violate its First Amendment associational rights. Lieutenant Governor Cox contended Utah’s legislation is well within the state’s regulatory power over elections. Both sides employ a constitutional base for their arguments requiring judicial review.
The Second Lawsuit
After the First Lawsuit, the Utah Republican Party announced that by following its own bylaws, it would permit nomination by caucus only. The Utah Republican Party’s justification for doing so was that it interpreted the “Either or Both Provision” as offering the political party (rather than the candidates) the option to allow nomination by either the signature gathering method, or the convention method, or both.
Lieutenant Governor Cox responded that it was the State’s position that under SB54 it is the party member’s choice, not the party’s choice, whether to pursue the nomination using the signature gathering method, the convention method, or both. This position held by Cox would not pass judicial scrutiny at the Supreme Court...
Following this interpretation by Lieutenant Governor Cox, the Utah Republican Party filed suit again in the United States District Court for the District of Utah seeking declaratory and injunctive relief that SB54 was unconstitutional. The phrasing of its Complaint was similar to the Complaint filed in the First Lawsuit.
The party reiterated its argument that SB54 violated its freedom of association under the 1st and 14th Amendments and added a claim that the State should be judicially estopped from advancing an interpretation of the “Either or Both” Provision that differed from the one it advanced in the First Lawsuit.
Shortly thereafter the Utah Democrat Party (“UDP”) intervened as co-plaintiff to defend against the possibility that portions of SB54 would apply to one political party but not the other, and of course...to complain that the Utah Republican Party’s bylaws and constitution violated SB54.
In February of 2016, the district court certified two questions of state law to the Utah Supreme Court. The first requested that court’s interpretation of the “Either or Both” Provision, asking whether that provision meant the candidate member, or the party had the right to choose which—or both—of the qualification processes to use.
The Utah Supreme Court replied that the “Either or Both” Provision allows the candidate member, not the party, to select which of those two paths to follow in an effort to be certified to the primary ballot. This was the killer opinion that violated our constitutional rights as a Party.
It makes no sense that the state has a compelling interest in deciding who is protected by the “either or both” provision. Any candidate running under a political party’s name should only qualify if they meet that Party’s nomination rules. The Utah Supreme Court disagreed.
Later, in 2016, the Party again filed suit, arguing, among other things, that SB54 was unconstitutional as applied to the Party because it (1) required the Party to participate in a primary election; and (2) required the Party to accept candidates who gathered signatures, in violation of its bylaws.
The Utah Supreme Court agreed with Lieutenant Governor Cox that SB54 requires the Party to allow members to become nominees by collecting signatures. The court claimed the burden these provisions placed on the UTAH REPUBLICAN PARTY associational rights was not severe and that the state’s interests were substantial enough to justify what little burden existed. The Utah Republican Party disagreed and appealed.
THE INCUMBENT PROTECTION ACT in all of its glory!
Under their appeal, the Utah Republican Party argued Utah’s recent reforms under SB54 violate its First Amendment associational rights. Lieutenant Governor Cox contended Utah’s legislation is well within the state’s regulatory power over elections. Both sides employ a constitutional base for their arguments requiring judicial review.
The Second Lawsuit
After the First Lawsuit, the Utah Republican Party announced that by following its own bylaws, it would permit nomination by caucus only. The Utah Republican Party’s justification for doing so was that it interpreted the “Either or Both Provision” as offering the political party (rather than the candidates) the option to allow nomination by either the signature gathering method, or the convention method, or both.
Lieutenant Governor Cox responded that it was the State’s position that under SB54 it is the party member’s choice, not the party’s choice, whether to pursue the nomination using the signature gathering method, the convention method, or both. This position held by Cox would not pass judicial scrutiny at the Supreme Court...
Following this interpretation by Lieutenant Governor Cox, the Utah Republican Party filed suit again in the United States District Court for the District of Utah seeking declaratory and injunctive relief that SB54 was unconstitutional. The phrasing of its Complaint was similar to the Complaint filed in the First Lawsuit.
The party reiterated its argument that SB54 violated its freedom of association under the 1st and 14th Amendments and added a claim that the State should be judicially estopped from advancing an interpretation of the “Either or Both” Provision that differed from the one it advanced in the First Lawsuit.
Shortly thereafter the Utah Democrat Party (“UDP”) intervened as co-plaintiff to defend against the possibility that portions of SB54 would apply to one political party but not the other, and of course...to complain that the Utah Republican Party’s bylaws and constitution violated SB54.
In February of 2016, the district court certified two questions of state law to the Utah Supreme Court. The first requested that court’s interpretation of the “Either or Both” Provision, asking whether that provision meant the candidate member, or the party had the right to choose which—or both—of the qualification processes to use.
The Utah Supreme Court replied that the “Either or Both” Provision allows the candidate member, not the party, to select which of those two paths to follow in an effort to be certified to the primary ballot. This was the killer opinion that violated our constitutional rights as a Party.
It makes no sense that the state has a compelling interest in deciding who is protected by the “either or both” provision. Any candidate running under a political party’s name should only qualify if they meet that Party’s nomination rules. The Utah Supreme Court disagreed.
Later, in 2016, the Party again filed suit, arguing, among other things, that SB54 was unconstitutional as applied to the Party because it (1) required the Party to participate in a primary election; and (2) required the Party to accept candidates who gathered signatures, in violation of its bylaws.
The Utah Supreme Court agreed with Lieutenant Governor Cox that SB54 requires the Party to allow members to become nominees by collecting signatures. The court claimed the burden these provisions placed on the UTAH REPUBLICAN PARTY associational rights was not severe and that the state’s interests were substantial enough to justify what little burden existed. The Utah Republican Party disagreed and appealed.
On to the 10th Circuit Court
It is important to remember that under our Constitutional Republic, the states are guaranteed a Republic form of government. Meaning the people elect representatives to govern their affairs. In order for the people to decide who governs their affairs, elections must be held.
The US Constitution grants states the right to prescribe the “times, places and manner of holding elections for Senators and Representatives” …and the Supreme Court has held that states enjoy similar authority to regulate their own elections.
It is not uncommon for regulations enacted to run elections to impose some burden upon individual voters and/or political parties. When they do, and the burden of these regulations infringe on the constitutional rights of the individual or the party, the interests of the state with respect to any election regulations must be balanced against an individual and/or institution’s constitutional rights.
One thing to remember, because our constitutional rights are inalienable (granted by God) and states’ rights were granted by the constitution, the state’s rights come second unless an overwhelming state interest can be demonstrated… if any state action appears to violate constitutional rights, the burden of proof is on the state to prove to the court why it’s OK to violate those rights. These were the battle lines drawn between the Utah Republican Party and the State of Utah at the 10th Circuit Court.
According to case law, a political party has a First Amendment right to limit its membership as it wishes, and to choose a candidate-selection process that will in its view produce the nominee who best represents its political platform.
This makes sense, as the nomination process is one that “often determines the party’s positions on the most significant public policy issues of the day, and even when those positions are predetermined it is the nominee who becomes the party’s ambassador to the general electorate in winning it over to the party’s views.”
At the same time, the Constitution explicitly grants states power to select the times, places and manner of holding Elections. Evaluations of First Amendment challenges to state election laws, attempt to account for these dueling interests.
Consideration must be given to the character and magnitude of the asserted injury to the rights protected by the First and Fourteenth Amendments that the Utah Republican Party seeks to vindicate. In balancing these considerations, “the rigorousness of our inquiry into the propriety of a state election law depends upon the extent to which a challenged regulation burdens First and Fourteenth Amendment rights.”
If a regulation is found to impose severe burdens on a Political Party’s constitutional rights, it must be narrowly tailored to serve a compelling state interest. However, when regulations impose lesser burdens, “a State’s important regulatory interests will usually be enough to justify reasonable, nondiscriminatory restrictions.”
When the Utah Republican Party announced that it would permit nomination by caucus/convention only, it was guarding its nomination process to ensure only candidates that embrace its platform made the ballot.
The Utah Republican Party’s justification for doing so was that it disagreed with the Utah Supreme Court and interpreted SB54 as offering the political party (rather than the candidates) the option to allow nomination by either the signature gathering method, or the convention method, or both.
However, with the judgement by the Utah Supreme Court in hand, Utah’s Lieutenant Governor (Mr. Cox) responded again, that it was the State’s position that under SB54 it is the party member’s choice, not the Party’s, whether to pursue the nomination using the signature gathering method, the convention method, or both.
This misinterpretation of the statute is where the GOP lost a 2-1 decision by the 10th Circuit Court panel, preventing full court consideration whose decision could ultimately be appealed to the Supreme Court, the final constitutional authority.
The Utah Republican Party believed this decision by Lieutenant Governor Cox was an intrusion on the Party’s ability to name its own candidates. A reasonable person might ask why a Republican Lt Governor would make a decision against his own Republican Party unless he was somehow beholden to the special interests involved.
Unfortunately, our legal representation failed us at this point, because we ended up proceeding with a hypothetical case failing to show real damages by SB54 to our party membership.
Federal courts can only interpret the law in the context of deciding a dispute. A court will rarely approach an issue in a hypothetical context. Why? Because a hypothetical case has hypothetical damages, and the courts will almost always give consideration to the status quo rather than rule on a hypothetical question.
This was unfortunate because Case law is on our side if we can show real damages or what the court refers to as “asserted injury.” We could have won this case on the fact that SB54 violated our First Amendment right of association. We lost on an important technicality.
After spending $500,000 to get to the 10th Circuit, we were staring at the need for at least $1 million more and an injured party to win at the Supreme Court. The UTAH REPUBLICAN PARTY believes Utah’s interference in its nomination process is unconstitutional and the Chief Justice of the 10th Circuit Court agreed in his dissenting opinion.
The Chief Justice's Constitutional Reasoning
Chief Justice of the 10th Circuit
Timothy Tymkovich
In order to understand what constitutes a burden, one must understand what person or identity is burdened. According to the state of Utah and the Utah Supreme Court (upheld by the 10th Circuit) the burden to be measured by state law in this case is against voters of the Republican Party rather than the UTAH REPUBLICAN PARTY itself.
From this view, it is easy to see how the court made its decision. By identifying the registered voters as the burdened class, the court reasoned that regardless of the primary process of how candidates make the ballot, the voting members of the UTAH REPUBLICAN PARTY still had an opportunity to vote for the candidate of their choice on the ballot. Even if they were signature candidates calling themselves Republicans bypassing the entire caucus process.
Therefore, in the eyes of the court, the burden of how candidates make the ballot matters less than whether the ballot contains Republican candidates to be voted on by its members. Because the voters had Republican candidates to vote for…in the courts eyes there was no damaged party. Had the 10TH Circuit Court found the UTAH REPUBLICAN PARTY as the damaged party rather than the voters...this case decision would have been easily reversed.
According to the Chief Justice of the 10th Circuit Court, “American legal thought is famed for its focus on procedure. And there is good reason: as every first-year civil procedure student learns, substance and procedure frequently form a Gordian knot—impossible to disentangle.”
“This insight carries over into the Law of Democracy. One change to procedure can work a profound change to the substance of political parties, including which candidates they choose and what messages they communicate.”
“In this case, the Utah Republican Party claims that Utah’s 2014 election law reforms purposely try to change the substantive type of candidates the Party nominates, all the while masquerading as mere procedural reform. If true, such a project would severely burden the Party’s associational rights, and without compelling justifications, it would be unconstitutional.”
“Because that is exactly what Utah has tried to do and because Utah has not provided adequate justification for placing such a burden on the Party’s associational rights, I would hold Utah’s election law violates the First Amendment.”
When a court is considering a challenge to a state election law, it must weigh “the character and magnitude of the asserted injury” to the rights protected by the 1st and 14th Amendments. By selecting the voting public as the affected class rather than the Party membership, the courts could not identify, to the extent it would overrule the state’s interest in running elections, “the character and magnitude of the asserted injury” to the Utah Republican Party.
Therefore the 10th Circuit concluded, 2-1, that the Utah Republican Party’s claims were not “ripe for review” ...meaning, “A claim is not ripe for adjudication if it rests upon ‘contingent future events that may not occur as anticipated, or indeed may not occur at all.’
According to the majority, the Utah Republican Party failed to demonstrate “asserted injury.” Our case was hypothetical…and as I mentioned above, it is impossible to ask the court to find “asserted injury” in a hypothetical situation.
As an example, when the Chief Justice of the 10th Circuit Court in oral arguments asked the lawyer for the state of Utah, if Bernie Sanders came to Utah, gathered enough signatures to make the ballot, and declared himself a Republican, he could run as a Republican and the Party could do nothing about it? …the lawyer answered yes.
While this makes our case for our constitutional rights of association as to membership in our Party, there was no Bernie Sanders, so there was no “asserted injury” to the Party. When courts are balancing constitutional rights, “asserted injury” or damages must be presented. As I mentioned, Courts are very careful to establish legal doctrine on hypothetical cases.
The issue of whether a government may constitutionally impose on a political party the kind of substantive intrusion that SB54 represents has divided the Party and the state and will not be resolved absent a new law or the Court’s examination of the issue within a proper case.
According to the Chief Justice of the 10th Circuit Court, this constitutional question is the ideal vehicle for the Court to vindicate the 1st Amendment rights of political parties... if we could only get there.
From this view, it is easy to see how the court made its decision. By identifying the registered voters as the burdened class, the court reasoned that regardless of the primary process of how candidates make the ballot, the voting members of the UTAH REPUBLICAN PARTY still had an opportunity to vote for the candidate of their choice on the ballot. Even if they were signature candidates calling themselves Republicans bypassing the entire caucus process.
Therefore, in the eyes of the court, the burden of how candidates make the ballot matters less than whether the ballot contains Republican candidates to be voted on by its members. Because the voters had Republican candidates to vote for…in the courts eyes there was no damaged party. Had the 10TH Circuit Court found the UTAH REPUBLICAN PARTY as the damaged party rather than the voters...this case decision would have been easily reversed.
According to the Chief Justice of the 10th Circuit Court, “American legal thought is famed for its focus on procedure. And there is good reason: as every first-year civil procedure student learns, substance and procedure frequently form a Gordian knot—impossible to disentangle.”
“This insight carries over into the Law of Democracy. One change to procedure can work a profound change to the substance of political parties, including which candidates they choose and what messages they communicate.”
“In this case, the Utah Republican Party claims that Utah’s 2014 election law reforms purposely try to change the substantive type of candidates the Party nominates, all the while masquerading as mere procedural reform. If true, such a project would severely burden the Party’s associational rights, and without compelling justifications, it would be unconstitutional.”
“Because that is exactly what Utah has tried to do and because Utah has not provided adequate justification for placing such a burden on the Party’s associational rights, I would hold Utah’s election law violates the First Amendment.”
When a court is considering a challenge to a state election law, it must weigh “the character and magnitude of the asserted injury” to the rights protected by the 1st and 14th Amendments. By selecting the voting public as the affected class rather than the Party membership, the courts could not identify, to the extent it would overrule the state’s interest in running elections, “the character and magnitude of the asserted injury” to the Utah Republican Party.
Therefore the 10th Circuit concluded, 2-1, that the Utah Republican Party’s claims were not “ripe for review” ...meaning, “A claim is not ripe for adjudication if it rests upon ‘contingent future events that may not occur as anticipated, or indeed may not occur at all.’
According to the majority, the Utah Republican Party failed to demonstrate “asserted injury.” Our case was hypothetical…and as I mentioned above, it is impossible to ask the court to find “asserted injury” in a hypothetical situation.
As an example, when the Chief Justice of the 10th Circuit Court in oral arguments asked the lawyer for the state of Utah, if Bernie Sanders came to Utah, gathered enough signatures to make the ballot, and declared himself a Republican, he could run as a Republican and the Party could do nothing about it? …the lawyer answered yes.
While this makes our case for our constitutional rights of association as to membership in our Party, there was no Bernie Sanders, so there was no “asserted injury” to the Party. When courts are balancing constitutional rights, “asserted injury” or damages must be presented. As I mentioned, Courts are very careful to establish legal doctrine on hypothetical cases.
The issue of whether a government may constitutionally impose on a political party the kind of substantive intrusion that SB54 represents has divided the Party and the state and will not be resolved absent a new law or the Court’s examination of the issue within a proper case.
According to the Chief Justice of the 10th Circuit Court, this constitutional question is the ideal vehicle for the Court to vindicate the 1st Amendment rights of political parties... if we could only get there.
Problems with the 10th Circuit 2-1 opinion
The 10th Circuit’s majority’s holding sanctions imposition of the State’s nominating process in lieu of the time tested one chosen by the Party and protected by the 1st Amendment, thus empowering monied special interests and inviting fraud.
Qualifying for the State’s primary election, which designates the Party’s nominees under the State’s scheme, is now only a matter of obtaining sufficient signatures—an undertaking open to fraud and easily accomplished with enough money—and the logistics of primary electioneering are likewise a matter of money.
Moreover, the majority’s holding undermines the principle of representative democracy—the approach the Party employs to limit reliance on monied special interests—by calling that practice into question as “overly restrictive and potentially unrepresentative.”
The holding additionally contradicts the Court’s explanation in New York State Bd. Of Elections v. Lopez Torres that “election by convention has never been thought unconstitutional, even when the delegates were not selected by primary but by party caucuses.” 552 U.S. 196, 206 (2008).
The majority decision of the 10th Circuit panel asserts that this is a case about “who the deciders are.” That assertion is correct but misplaced in the majority’s application. In reality this is a campaign mounted by interests in the business wing of the Party and some Democrats to gain greater control over Party nomination outcomes.
Although “direct democracy was originally a progressive instrument designed to break the power of corrupt state governments and corporations...today it has become a tool of corporations and well-funded interest groups that claim to speak for the people but instead seek only to further their own agendas.”
The group pushing to change the Party’s nominating process was built by local monied interests concerned that the process gave them too little power.
The Party’s nominating system is a hurdle to buying influence.
The Party’s nominating process, by contrast, values in-person interaction over the types of electioneering money can buy. Placing a premium on personal interaction over mailers and media buys promotes greater involvement from average ordinary citizens—greater involvement as voters and greater involvement as candidates.
It provides a level opportunity for all Party nomination contenders, regardless of wealth and personal connections. Moreover, personal interaction between voters and those contending for Party nomination rewards substance and depth and rewards nomination seekers who align with Party principles while hindering those who don’t and hindering incumbents who seek to avoid critical examination on their records.
The Party’s nominating system gives the average citizen an opportunity to play a larger role in politics.
The Party’s nominating process is not as susceptible to monied special interest in part because it gives the average citizen an opportunity to play a larger role in politics. The Party’s elected neighborhood representatives are schoolteachers, bankers, lawyers, truck drivers, homemakers, and carpenters, hailing from every neighborhood in Utah. What sets them apart is they care about government, and they want to participate. They took the time to join a political party, study the issues and the candidates, and to attend their neighborhood caucus and run to become a delegate.
Any adult in the state...could have done the same, because this system is open to anyone who wants to get involved. As indeed many do...
These neighborhood representatives thus elected have direct access to examine all those contending for party nomination. And direct access enables them to substantively and repeatedly question contenders on their principles and voting records and to evaluate the contenders based on that personal interaction.
The Party’s nominating system enables those seeking nomination to do so on a shoestring budget and to be judged on personal interactions rather than on mailers and media buys.
The Party’s system makes the process accessible to nomination seekers who don’t possess wealth or connections. Because personal interaction, rather than mailers and media buys, is the currency in trade, nomination seekers don’t need large campaign chests to be effective... obtaining a Party nomination on minimal funds is realistic.
For example, in a (pre-SB54) 2014 Utah House race with three contenders for Party nomination, the nomination winner at 69.8% spent under $5,000 despite the fact that one of the contenders, a former legislator, spent over $15,000.
And nomination seekers don’t need to be famous. The role of a delegate is to “give all candidates a fair hearing” and not “blindly support” candidates simply because they are popular. Thus, the Party process helps level the playing field to attract the best candidates, not just those who have the most money or name recognition.
Any candidate can talk with every one of the delegates to earn votes—in group or one-on-one meetings or through personal phone calls.
They don’t need the best campaign staff money can buy to do this. In many races they don’t even need a campaign staff at all. They don’t need television ads. They don’t need fame or fortune—they just need themselves and their message. And because a large campaign chest is not needed, the influence of money is constrained.
In personal interactions, money can’t easily cover up a shallow or disingenuous message or a bad voting record. Nor, in personal interactions, does money easily blur the distinction between those who believe in and will advocate for the Party’s principles and those who simply want Party endorsement on the general election ballot.
The Party’s nominating system disadvantages contenders who have a message inconsistent with the principles the Party espouses.
Political parties “were created by necessity” in order “to coordinate efforts to secure needed legislation and oppose that deemed undesirable,” thus the objective of a political party is to exercise its First Amendment rights to see the principles around which it is organized enacted into law. And parties seek to do so by first choosing standard bearers who will work to that end and then working to get those standard bearers elected.
“Parties seek principally to promote the election of candidates who will implement the party’s views.” Thus, it is essential to a party’s purpose that the party’s nominees reflect and also seek to advance the Party’s principles.
Qualifying for the State’s primary election, which designates the Party’s nominees under the State’s scheme, is now only a matter of obtaining sufficient signatures—an undertaking open to fraud and easily accomplished with enough money—and the logistics of primary electioneering are likewise a matter of money.
Moreover, the majority’s holding undermines the principle of representative democracy—the approach the Party employs to limit reliance on monied special interests—by calling that practice into question as “overly restrictive and potentially unrepresentative.”
The holding additionally contradicts the Court’s explanation in New York State Bd. Of Elections v. Lopez Torres that “election by convention has never been thought unconstitutional, even when the delegates were not selected by primary but by party caucuses.” 552 U.S. 196, 206 (2008).
The majority decision of the 10th Circuit panel asserts that this is a case about “who the deciders are.” That assertion is correct but misplaced in the majority’s application. In reality this is a campaign mounted by interests in the business wing of the Party and some Democrats to gain greater control over Party nomination outcomes.
Although “direct democracy was originally a progressive instrument designed to break the power of corrupt state governments and corporations...today it has become a tool of corporations and well-funded interest groups that claim to speak for the people but instead seek only to further their own agendas.”
The group pushing to change the Party’s nominating process was built by local monied interests concerned that the process gave them too little power.
The Party’s nominating system is a hurdle to buying influence.
The Party’s nominating process, by contrast, values in-person interaction over the types of electioneering money can buy. Placing a premium on personal interaction over mailers and media buys promotes greater involvement from average ordinary citizens—greater involvement as voters and greater involvement as candidates.
It provides a level opportunity for all Party nomination contenders, regardless of wealth and personal connections. Moreover, personal interaction between voters and those contending for Party nomination rewards substance and depth and rewards nomination seekers who align with Party principles while hindering those who don’t and hindering incumbents who seek to avoid critical examination on their records.
The Party’s nominating system gives the average citizen an opportunity to play a larger role in politics.
The Party’s nominating process is not as susceptible to monied special interest in part because it gives the average citizen an opportunity to play a larger role in politics. The Party’s elected neighborhood representatives are schoolteachers, bankers, lawyers, truck drivers, homemakers, and carpenters, hailing from every neighborhood in Utah. What sets them apart is they care about government, and they want to participate. They took the time to join a political party, study the issues and the candidates, and to attend their neighborhood caucus and run to become a delegate.
Any adult in the state...could have done the same, because this system is open to anyone who wants to get involved. As indeed many do...
These neighborhood representatives thus elected have direct access to examine all those contending for party nomination. And direct access enables them to substantively and repeatedly question contenders on their principles and voting records and to evaluate the contenders based on that personal interaction.
The Party’s nominating system enables those seeking nomination to do so on a shoestring budget and to be judged on personal interactions rather than on mailers and media buys.
The Party’s system makes the process accessible to nomination seekers who don’t possess wealth or connections. Because personal interaction, rather than mailers and media buys, is the currency in trade, nomination seekers don’t need large campaign chests to be effective... obtaining a Party nomination on minimal funds is realistic.
For example, in a (pre-SB54) 2014 Utah House race with three contenders for Party nomination, the nomination winner at 69.8% spent under $5,000 despite the fact that one of the contenders, a former legislator, spent over $15,000.
And nomination seekers don’t need to be famous. The role of a delegate is to “give all candidates a fair hearing” and not “blindly support” candidates simply because they are popular. Thus, the Party process helps level the playing field to attract the best candidates, not just those who have the most money or name recognition.
Any candidate can talk with every one of the delegates to earn votes—in group or one-on-one meetings or through personal phone calls.
They don’t need the best campaign staff money can buy to do this. In many races they don’t even need a campaign staff at all. They don’t need television ads. They don’t need fame or fortune—they just need themselves and their message. And because a large campaign chest is not needed, the influence of money is constrained.
In personal interactions, money can’t easily cover up a shallow or disingenuous message or a bad voting record. Nor, in personal interactions, does money easily blur the distinction between those who believe in and will advocate for the Party’s principles and those who simply want Party endorsement on the general election ballot.
The Party’s nominating system disadvantages contenders who have a message inconsistent with the principles the Party espouses.
Political parties “were created by necessity” in order “to coordinate efforts to secure needed legislation and oppose that deemed undesirable,” thus the objective of a political party is to exercise its First Amendment rights to see the principles around which it is organized enacted into law. And parties seek to do so by first choosing standard bearers who will work to that end and then working to get those standard bearers elected.
“Parties seek principally to promote the election of candidates who will implement the party’s views.” Thus, it is essential to a party’s purpose that the party’s nominees reflect and also seek to advance the Party’s principles.
Our Party Platform Proclaims Our Values & Principles as Republicans
utgop.org/governing-documents/
Accordingly, parties need a process to distinguish between those who believe in the Party’s platform and those who do not. The Party’s nomination process has this objective in mind. Candidates seeking Party nomination through the Party’s process are asked to sign a pledge that they accept the platform as the standard by which their performance will be evaluated.
And the Party’s platform is read at neighborhood caucus meetings to help ensure that all attending are familiar with the Party’s core principles.
Our Party platform proclaims our values as Republicans. It attracts people to the Party. It is the ideological glue that holds us together...We want our platform to be law, essentially.
And the Party’s platform is read at neighborhood caucus meetings to help ensure that all attending are familiar with the Party’s core principles.
Our Party platform proclaims our values as Republicans. It attracts people to the Party. It is the ideological glue that holds us together...We want our platform to be law, essentially.
Accordingly, the role of delegates is to identify the platform candidates and support them for the Party’s nomination. This is the nominee’s election process that, in the Party’s view, “will produce the nominee who best represents its political platform.
”Nomination seekers who don’t espouse the Party’s principles or who have a message inconsistent with the Party’s principles are at a distinct disadvantage in the Party’s process as they interact with delegates who are measuring them against that platform.
This is due, again, to the fact that the process is about personal interaction. While a mailer can vaguely proclaim, “I share your values!”, a conversation on the matter may very well lead to a different conclusion.
In this way, neighborhood representatives can distinguish between those who are truly interested in advancing the Party’s First Amendment expressions and those who are simply interested in advancing themselves to the general election ballot with the Party’s endorsement by their name.
The Party’s process provides for this distinguishing to take place.
The State’s process for choosing the Party’s nominees, on the other hand, does not. SB54 creates a nomination framework more easily manipulated by monied special interests and more open to fraud.
A primary election demands a different kind of electioneering, one that requires more money and thus “places a high premium upon the ability to raise money.” Accordingly, monied special interests have greater influence. At the outset, those special interests can pave the State-mandated route right on to the primary election ballot for any candidate they want.
That is a route easily traversed with money, since a campaign that has enough funds to pay signature gatherers “has a nearly 100 percent chance of qualifying for the ballot.”
Notably, the signature-gathering process is one that is open to fraud, with workers forging signatures and deceiving signers about what they are signing. Such has been Utah’s experience.
In fact, as the National Conference of State Legislators recognizes, fraud prevention in the signature gathering process is very difficult. As a local signature-gathering company founder and president puts it, given Utah’s current petition process, “fraud ‘is bound to happen again...
Beyond fraud issues, in a primary election money dictates access to voters, something that is not the case for the Party’s nominating convention.
As those seeking Party nomination cannot feasibly personally meet with every potential primary voter, mailers and media buys are the methodology. And that methodology means money. Those able to buy the best campaign staff and the most and best television and radio ads have a huge advantage over otherwise good and strong candidates who do not have the same kind of financial backing.
Candidates without those resources have little chance of successfully getting their messages out—and very little chance of success.
Again, this provides well-heeled special interests a greater role than under the Party’s process—under SB54, monied interests play a pivotal role and can effectively sway the outcome.
And that, in fact, is what the people and business interests behind Count My Vote seek to do. Those interests were large contributors in the 2016 election cycle, which should come as no surprise, since changing the nomination framework to give the monied interests behind Count My Vote the broadest influence in nominee selection was the goal all along.
I will remind you all that nothing in SB54 prevents the Utah Republican Party from ignoring signature candidates and endorsing convention only candidates of its choice and using traditional advertising channels to communicate that endorsement to the state’s voters.
It’s the Party’s own bylaws regarding neutrality that prevents endorsement in most cases. I believe these neutrality rules must be changed if the Party is serious about electing conservative candidates under SB54.
”Nomination seekers who don’t espouse the Party’s principles or who have a message inconsistent with the Party’s principles are at a distinct disadvantage in the Party’s process as they interact with delegates who are measuring them against that platform.
This is due, again, to the fact that the process is about personal interaction. While a mailer can vaguely proclaim, “I share your values!”, a conversation on the matter may very well lead to a different conclusion.
In this way, neighborhood representatives can distinguish between those who are truly interested in advancing the Party’s First Amendment expressions and those who are simply interested in advancing themselves to the general election ballot with the Party’s endorsement by their name.
The Party’s process provides for this distinguishing to take place.
The State’s process for choosing the Party’s nominees, on the other hand, does not. SB54 creates a nomination framework more easily manipulated by monied special interests and more open to fraud.
A primary election demands a different kind of electioneering, one that requires more money and thus “places a high premium upon the ability to raise money.” Accordingly, monied special interests have greater influence. At the outset, those special interests can pave the State-mandated route right on to the primary election ballot for any candidate they want.
That is a route easily traversed with money, since a campaign that has enough funds to pay signature gatherers “has a nearly 100 percent chance of qualifying for the ballot.”
Notably, the signature-gathering process is one that is open to fraud, with workers forging signatures and deceiving signers about what they are signing. Such has been Utah’s experience.
In fact, as the National Conference of State Legislators recognizes, fraud prevention in the signature gathering process is very difficult. As a local signature-gathering company founder and president puts it, given Utah’s current petition process, “fraud ‘is bound to happen again...
Beyond fraud issues, in a primary election money dictates access to voters, something that is not the case for the Party’s nominating convention.
As those seeking Party nomination cannot feasibly personally meet with every potential primary voter, mailers and media buys are the methodology. And that methodology means money. Those able to buy the best campaign staff and the most and best television and radio ads have a huge advantage over otherwise good and strong candidates who do not have the same kind of financial backing.
Candidates without those resources have little chance of successfully getting their messages out—and very little chance of success.
Again, this provides well-heeled special interests a greater role than under the Party’s process—under SB54, monied interests play a pivotal role and can effectively sway the outcome.
And that, in fact, is what the people and business interests behind Count My Vote seek to do. Those interests were large contributors in the 2016 election cycle, which should come as no surprise, since changing the nomination framework to give the monied interests behind Count My Vote the broadest influence in nominee selection was the goal all along.
I will remind you all that nothing in SB54 prevents the Utah Republican Party from ignoring signature candidates and endorsing convention only candidates of its choice and using traditional advertising channels to communicate that endorsement to the state’s voters.
It’s the Party’s own bylaws regarding neutrality that prevents endorsement in most cases. I believe these neutrality rules must be changed if the Party is serious about electing conservative candidates under SB54.
Our Path Forward
We must strengthen our bylaws to legally support our convention only candidates and presume SB-54 is indeed unconstitutional. When reviewed by the Supreme Court, there is no doubt in my mind the Party’s constitutional right of free association will prevail over the States interest in making the caucus/Convention system go away for the benefit of their wealthy donors. And...I am in very good company as the Chief Justice of the 10th Circuit Court agrees.
In Closing...The general misconception is that any statute passed by legislators bearing the appearance of law constitutes the law of the land. The U.S. Constitution is the supreme law of the land, and any statute, to be valid, must be in agreement. It is impossible for both the Constitution and a law violating it to be valid; one must prevail. This is succinctly stated as follows:
According to the US Supreme Court; ”The General rule is that an unconstitutional statute, though having the form and name of law is in reality no law, but is wholly void, and ineffective for any purpose, since unconstitutionality dates from the time of its enactment and not merely from the date of the decision so branding it. An unconstitutional law, in legal contemplation, is as inoperative as if it had never been passed. Such a statute leaves the question that it purports to settle just as it would be had the statute not been enacted.”
Since an unconstitutional law is void, the general principles follow that it imposes no duties, confers no rights, creates no office, bestows no power or authority on anyone, affords no protection, and justifies no acts performed under it.
A void act cannot be legally consistent with a valid one. An unconstitutional law cannot operate to supersede any existing valid law. Indeed, insofar as a statute runs counter to the fundamental law of the land, it is superseded thereby.
Strictly speaking, an unconstitutional statute is not a "law", and should not be called a "law", even if it is sustained by a court, for a finding that a statute or other official act is constitutional does not make it so or confer any authority to anyone to enforce it.
Any unconstitutional act of an official will at least be a violation of the oath of that official to execute the duties of his office, and therefore grounds for his removal from office.
With all this talk about the constitution, I would like to finish by asking all of you a question. As a citizen of the United States, are you aware you are required by law to lay down your life in defense of the constitution?
All citizens and legal residents of the United States, by their presence on the territory of the United States, are subject to the “militia duty” under Article I Sec 8 clause 16 of the US Constitution.
The duty is part of our social compact that creates our society requiring each, alone and in concert with others, to not only obey the Constitution and constitutional official acts, but help enforce them, if necessary, at the risk of our own life.
What is Article I, Section 8, Clause 16 of the US Constitution?
Congress’s power to organize militias.
In Closing...The general misconception is that any statute passed by legislators bearing the appearance of law constitutes the law of the land. The U.S. Constitution is the supreme law of the land, and any statute, to be valid, must be in agreement. It is impossible for both the Constitution and a law violating it to be valid; one must prevail. This is succinctly stated as follows:
According to the US Supreme Court; ”The General rule is that an unconstitutional statute, though having the form and name of law is in reality no law, but is wholly void, and ineffective for any purpose, since unconstitutionality dates from the time of its enactment and not merely from the date of the decision so branding it. An unconstitutional law, in legal contemplation, is as inoperative as if it had never been passed. Such a statute leaves the question that it purports to settle just as it would be had the statute not been enacted.”
Since an unconstitutional law is void, the general principles follow that it imposes no duties, confers no rights, creates no office, bestows no power or authority on anyone, affords no protection, and justifies no acts performed under it.
A void act cannot be legally consistent with a valid one. An unconstitutional law cannot operate to supersede any existing valid law. Indeed, insofar as a statute runs counter to the fundamental law of the land, it is superseded thereby.
Strictly speaking, an unconstitutional statute is not a "law", and should not be called a "law", even if it is sustained by a court, for a finding that a statute or other official act is constitutional does not make it so or confer any authority to anyone to enforce it.
Any unconstitutional act of an official will at least be a violation of the oath of that official to execute the duties of his office, and therefore grounds for his removal from office.
With all this talk about the constitution, I would like to finish by asking all of you a question. As a citizen of the United States, are you aware you are required by law to lay down your life in defense of the constitution?
All citizens and legal residents of the United States, by their presence on the territory of the United States, are subject to the “militia duty” under Article I Sec 8 clause 16 of the US Constitution.
The duty is part of our social compact that creates our society requiring each, alone and in concert with others, to not only obey the Constitution and constitutional official acts, but help enforce them, if necessary, at the risk of our own life.
What is Article I, Section 8, Clause 16 of the US Constitution?
Congress’s power to organize militias.
The Defense of the Nation is the Responsibility of its People
The Constitution states “Congress shall have Power to provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, according to the discipline prescribed by Congress; . . .”
The Supreme Court has characterized Congress’s power over the militia as being unlimited, such that the power may be exercised to any extent that may be deemed necessary by Congress.
Under the National Defense Act of 1916, the militia, which had been an almost purely state institution, was brought under the control of the federal government. The act defined the militia of the United States – “to include all able-bodied male citizens of the United States and all other able-bodied males who have . . . declared their intention to become citizens of the United States between the ages of eighteen and forty-five.”
The act also authorizes the President in certain emergencies to draft these able-bodied men into the military service of the United States to protect and defend the United States Constitution.
The Militia Clause does not constrain Congress in raising and supporting a national army. The Supreme Court has approved the system of dual enlistment, under which persons enlisted in state militia (National Guard) units simultaneously enlist in the National Guard of the United States, and, when called to active duty in the federal service, are relieved of their status in the state militia.
“No official immunity or privileges of rank or position survive the commission of unlawful acts. If it violates the rights of individuals, it is also likely to be a crime, and the ‘militia duty’ in Sec 8 obligates anyone aware of such a violation to investigate it, gather evidence for a prosecution, make an arrest, and if necessary, seek an indictment from a grand jury, and if one is obtained, prosecute the offender in a court of law.”
CITIZENS ARE REQUIRED BY LAW TO protect and defend the United States and our Constitution WITH THEIR LIFE...
NO ONE IS BOUND TO OBEY AN UNCONSTITUTIONAL LAW AND NO COURTS ARE BOUND TO ENFORCE IT.
It has been 5 years since many Utah House members recognized the problems with SB54 and sought to repeal the measure. In 2018, the original House sponsor of SB-54 flipped and sponsored House Bill 338, to essentially repeal SB-54. The House overwhelmingly passed the repeal bill with members expressing regret over SB54 and characterizing it as an “unmitigated disaster, but the bill was not considered by the cowardly Senate before the session ended, stopping us in our tracks.
We must work harder within the Utah Republican Party to vet and elect representatives willing to obey the Constitution and take our Party back from the big money special interests intent on destroying our Caucus/Convention system.
www.weber-county-conservatives.com/
The Supreme Court has characterized Congress’s power over the militia as being unlimited, such that the power may be exercised to any extent that may be deemed necessary by Congress.
Under the National Defense Act of 1916, the militia, which had been an almost purely state institution, was brought under the control of the federal government. The act defined the militia of the United States – “to include all able-bodied male citizens of the United States and all other able-bodied males who have . . . declared their intention to become citizens of the United States between the ages of eighteen and forty-five.”
The act also authorizes the President in certain emergencies to draft these able-bodied men into the military service of the United States to protect and defend the United States Constitution.
The Militia Clause does not constrain Congress in raising and supporting a national army. The Supreme Court has approved the system of dual enlistment, under which persons enlisted in state militia (National Guard) units simultaneously enlist in the National Guard of the United States, and, when called to active duty in the federal service, are relieved of their status in the state militia.
“No official immunity or privileges of rank or position survive the commission of unlawful acts. If it violates the rights of individuals, it is also likely to be a crime, and the ‘militia duty’ in Sec 8 obligates anyone aware of such a violation to investigate it, gather evidence for a prosecution, make an arrest, and if necessary, seek an indictment from a grand jury, and if one is obtained, prosecute the offender in a court of law.”
CITIZENS ARE REQUIRED BY LAW TO protect and defend the United States and our Constitution WITH THEIR LIFE...
NO ONE IS BOUND TO OBEY AN UNCONSTITUTIONAL LAW AND NO COURTS ARE BOUND TO ENFORCE IT.
It has been 5 years since many Utah House members recognized the problems with SB54 and sought to repeal the measure. In 2018, the original House sponsor of SB-54 flipped and sponsored House Bill 338, to essentially repeal SB-54. The House overwhelmingly passed the repeal bill with members expressing regret over SB54 and characterizing it as an “unmitigated disaster, but the bill was not considered by the cowardly Senate before the session ended, stopping us in our tracks.
We must work harder within the Utah Republican Party to vet and elect representatives willing to obey the Constitution and take our Party back from the big money special interests intent on destroying our Caucus/Convention system.
www.weber-county-conservatives.com/
