Constitution Party Motion To Intervene in Count My Vote Lawsuit

Case 2:14-cv-00876-DN Document 10 Filed 12/23/14 Page 1 of 124
Collin R. Simonsen (12661)

Gregory M. Simonsen (4669)
FETZER SIMONSEN BOOTH & JENKINS, P.C.
50 West Broadway, Suite 1200
Salt Lake City, UT 84101
Telephone:
(801) 328-0266
Facsimile:
(801) 328-0269
collin@mountainwestlaw.com
greg@mountainwestlaw.com
Attorneys for Plaintiff and Intervenor Constitution Party of Utah
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH, CENTRAL DIVISION
CONSTITUTION PARTY OF UTAH, a
registered political party of Utah,
MOTION TO INTERVENE
Plaintiff and Intervenor,

UTAH REPUBLICAN PARTY,
Plaintiff,
Case No. 2:14-cv-00876 BCW

Magistrate Judge Brooke C. Wells
v.
GARY R. HERBERT, in his official capacity
as Governor of Utah, and SPENCER J. COX,
in his official capacity as Lieutenant
Governor of Utah,
Defendants.
I.
Relief Sought.
The Constitution Party of Utah (Constitution Party) seeks an order granting it leave to
intervene as a plaintiff and to file its complaint in the present matter, Case No. 2:14-cv-00876.
II.
Grounds.
Rule 24(b) of the Federal Rules of Civil Procedure allows for Permissive Intervention
by one party who timely moves to intervene and has a claim or defense that shares with the
main action a common question of law or fact. Fed. Rules Civ. Proc. R. 24(b)(1)(B). The
Constitution Party, having a claim that shares a common question of law and fact with Plaintiff,
Utah Republican Party, hereby timely moves to intervene in the present matter number.
The Constitution Partys proposed complaint (Constitution Party Complaint) is
attached herewith as Exhibit A.
III.
Fact Statement.
1.
The Utah Republican Party (Republican Party) filed a complaint (the
Republican Party Complaint) on December 1, 2014. The Republican Party Complaint is

attached herewith as Exhibit B.
2.
The Republican Party Complaint alleges, among other things, that a recently
enacted bill, Senate Bill 54 (SB54), which amends the Utah Election Code, is unconstitutional
as a violation of the First and Fourteenth Amendments to the United States Constitution. See e.g.
Republican Party Complaint 1, 8-10.
3.
Like the Republican Party, the Constitution Party is a registered political party of
the State of Utah. The Constitution Party is affiliated with the National Constitution Party
located in Lancaster, Pennsylvania.
4.
SB54 requires, among other things, that candidates for a party participate in a
primary election. Like the Republican Party, the Constitution Party has a caucus/convention
system for nominating candidates. The Constitution Party Bylaws are attached herewith as
Exhibit C and are available at http://www.constitutionpartyofutah.com/bylaws/, retrieved
December 9, 2014.
5.
Article IX of the Constitution Party Bylaws governs how nominees for political
office are chosen. For example, Article IX.A requires a nominee to obtain the majority of votes
of the delegates at the state convention.
6.
As alleged in the Republican Party Complaint, SB54 impermissibly compels
political parties to utilize a primary system instead of a caucus/convention system for nominating
candidates. For this and other reasons, the Republican Party Complaint alleges that SB54
violates its First and Fourteenth Amendment rights. See e.g. Republican Party Complaint
generally and in particular 108-112.
7.
The Constitution Party alleges many of the same things in its complaint. See e.g.
Constitution Party Complaint 36, 37.

8.
Both the Republican Party Complaint and the Constitution Party Complaint allege
trademark violations. Republican Party Complaint 119-122, Constitution Party Complaint

43- 48.
9.
Despite the numerous similarities, the Constitution Party Complaint includes
allegations that are unique to the Constitution Party. For example, the complaint alleges that the
Constitution Party is a small political party and, considering that the Republican Party is the
most dominant party in the State, in terms of the number of its members and in the success it has
had electing its nominees to office at the federal, state, and local levels (Republican Party
Complaint 32), the Constitution Party is vulnerable to potential raiding activities from larger
parties enabled by SB54. Constitution Party Complaint 21.
10.
Indeed, one of the bill's sponsors said that the bill provides an opportunity for a
state that is dominated by a single party to reach out and grab more people.
http://www.stgeorgeutah.com/news/archive/2014/03/06/mgk-count-vote-bill-passed-state-housesenate-goes-governor/#.UxoKaz9dVBE, retrieved December 12, 2014 (see Exhibit D hereto).
Presumably this would include Constitution party members.
11.
According to some accounts, the filing of the present matter has caused
contention within the Republican Party. See

http://www.deseretnews.com/article/865617185/The-hullabaloo-behind-the-Count-My-Votelawsuit.html, retrieved December 9, 2014 (see Exhibit D hereto).
12.
Furthermore, I would argue what we are doing is the death of the caucus-
convention system, Rep. Jon Stanard, R-St. George said. Within a number of years it will not
exist when we pass this bill. http://www.stgeorgeutah.com/news/archive/2014/03/06/mgkcount-vote-bill-passed-state-house-senate-goes-governor/#.UxoKaz9dVBE, retrieved December
12, 2014 (see Exhibit D hereto).
13.
And Rep. Ken Ivory, R-West Jordan, said he believed the bill was
unconstitutional, as the state legislature is deciding for the states political parties how they will
conduct their primaries. It potentially violates freedoms of expression, speech, and association,
he said. Id.
14.
In contrast, Governor Herbert believes SB54 to be constitutional and signed the
bill because it is a good compromise that preserves the caucus and convention system while
providing more opportunities for participation by the general electorate."
http://www.deseretnews.com/article/865617281/Gov-Gary-Herbert-Count-My-Votecompromise-constitutional-but-GOP-has-right-to-sue.html?pg=all, retrieved December 12, 2014
(see Exhibit D hereto).
IV.
Argument.
a.
This Motion is Timely.
Rule 24 of the Federal Rules of Civil Procedure requires that a motion to intervene be
timely made. Fed. Rules Civ. Pro. R. 24(b)(1). The Republican Party Complaint was filed on
December 1, 2014. The answer is not due until February 2, 2015. (See docket entry # 4.)
Because of the early filing of this motion, there will be no undue delay or prejudice to any party.
b.
The Constitution Partys Claims Share Common Questions of Law

and Fact.
As can be seen by comparing the Republican Party Complaint and the Constitution Party
Complaint, there is a high correlation of legal and fact issues. Both parties are Utah parties
subject to SB54. Both have caucus/convention systems that are affected by SB54. Both
complaints have causes of action for breach of free speech and associational rights. Both
complaints allege trademark infringement. Further similarities in fact and law can be found by a
review of the complaints.
c.
The Constitution Party is Not Adequately Protected by Republican

Partys Suit.
The Constitution Party needs to be a party to this litigation to protect its interests because
it is affected differently than the Republican Party.
The Republican Party alleges that it is the dominant party in the State of Utah.
Republican Party Complaint 32. Indeed, Defendants, along with the State Senate Majority
Leader and the Speaker of the House, are members of the Republican Party. See
http://garyherbert.com/2012/11/proud-to-be-a-republican/, http://ballotpedia.org/Spencer_Cox,
http://www.utahsenate.org/aspx/senmember.aspx?dist=9, and
http://le.utah.gov:443/house2/index.html, retrieved December 9, 2014 (see Exhibit D hereto).
The Republican Party enjoys a supermajority in the legislature.
http://www.deseretnews.com/article/865616838/Utah-GOP-fractured-over-Count-My-Votelawsuit.html?pg=all, retrieved December 15, 2014 (see Exhibit D hereto).
Also, the Republican controlled legislature and Governor Herbert passed SB54.
http://www.ksl.com/?nid=960&sid=29016444, retrieved December 9, 2014 (see Exhibit D
hereto). The present lawsuit has caused a rift among Republicans, according to some accounts.
See http://www.deseretnews.com/article/865617185/The-hullabaloo-behind-the-Count-My-Votelawsuit.html, retrieved December 9, 2014 (see Exhibit D hereto).
Because the Republican Party passed the measure, it is likely that the Republican Party
will have different motives, different reasons to settle, different levels of determination to
prosecute, and different goals in litigation.
The comments by Representatives Ivory and Standard, contrasted to those of Governor
Herbert, show that the Republican Partys view is essentially schizophrenic, which should give
any potential party pause when considering whether or not its interests will be adequately
represented by the Plaintiff. The Constitution Party must be a party to this action in order to
protect its interests.
Furthermore, the Constitution Party is harmed differently and possibly to a greater degree
than the Republican Party due to the Constitution Partys smaller status and fewer resources.
See Constitution Party Complaint 27. Constitution Party candidates do not have as much
money, infrastructure, or volunteers as the Republican Party, thus making the requirements of
SB54 potentially more onerous for the Constitution Party than for the Republican Party. This
means that the Constitution Partys as-applied case against SB54 may be stronger than the
Republican Partys.
Furthermore, the Constitution Party believes that it is more at risk from raiding activities
by larger parties than the Republican Party. SB54 makes it easier for larger parties to engage in
raiding and other ballot box manipulations, according to the Constitution Party Complaint. The
Court should allow the Constitution Party to prove this at trial.
CONCLUSION
For the foregoing reasons, the Court should allow the Constitution Party to intervene as a
plaintiff in this matter.
DATED this 23rd day of December, 2014.
/s/
Collin R. Simonsen
Gregory M. Simonsen
Attorneys for Plaintiff and Intervenor
Constitution Party of Utah
CERTIFICATE OF SERVICE
I hereby certify that on the 23rd day of December, 2014, I electronically filed the
foregoing MOTION TO INTERVENE with the Clerk of Court using the CM/ECF system
which sent notification of such filing to the following:
Parker Douglas
pdouglas@utah.gov,saexeter@utah.gov
Marcus R. Mumford
mrm@mumfordpc.com,jen@mumfordpc.com,jso@mumfordpc.com
David N. Wolf
dnwolf@utah.gov,suzannenelson@utah.gov,szeller@utah.gov,clesmes@utah.gov
Manual Notice List

(No manual recipients)
/s/
Shellee Timmreck
Exhibit A
Collin R. Simonsen (12661)

Gregory M. Simonsen (4669)
50 West Broadway, Suite 1200
Salt Lake City, UT 84101
Telephone:
(801) 328-0266
Facsimile:
(801) 328-0269
collin@mountainwestlaw.com
greg@mountainwestlaw.com
Attorneys for Plaintiff and Intervenor Constitution Party of Utah
CONSTITUTION PARTY OF UTAH, a

registered political party of Utah,
COMPLAINT
(Proposed)
Plaintiff and Intervenor,

Case No. 2:14-cv-00876 BCW
Plaintiff,
Magistrate Judge Brooke C. Wells

v.
GARY R. HERBERT, in his official capacity
as Governor of Utah, and SPENCER J. COX,
in his official capacity as Lieutenant
Governor of Utah,
Defendants.
This Complaint is filed by the Constitution Party of Utah (the Constitution Party) as an
intervening Plaintiff and complains and alleges against Gary R. Herbert and Spencer J. Cox
(Defendants) as follows:
PARTIES AND JURISDICTION
1.
The Constitution Party is a registered political party of Utah and a part of the
National Constitution Party.a

2.
The Utah Republican Party is the original Plaintiff in this matter and its
Complaint is on file with the Court.

3.
Defendant Gary R. Herbert is the Governor of Utah and, in that capacity,
supervises the official conduct of all executive and ministerial officers, including those
responsible for the enforcement of Senate Bill 54 (SB54).
4.
Defendant Spencer J. Cox is the Lieutenant Governor of Utah and, in that
capacity, is also the chief election officer of Utah pursuant to Utah Code 67-1a-2(2)(a) and
responsible for the enforcement of SB54.
5.
Defendants are responsible for the administration of Utahs election process,
including overseeing all voter registration activities and coordinating with local, state and federal
officials to ensure compliance with state and federal election laws, including SB54.
The national location for the Constitution Party is Lancaster, Pennsylvania.

http://www.constitutionparty.com/contact/. The state party is located in Bountiful, Utah.
http://www.constitutionpartyofutah.com/contact-us/
6.
This Court has jurisdiction pursuant to 28 U.S.C. 1331 and 1343, in that it
presents a federal question involving constitutionally protected rights. Declaratory and

injunctive relief is authorized by 28 U.S.C. 2201 and 2202. State law questions are
appropriate in this Court as supplemental claims over which this Court has jurisdiction pursuant
to 28 U.S.C. 1367.
7.
Venue is proper in this Court pursuant to 28 U.S.C. 1391.
8.
This case is brought pursuant to the First, Ninth, Tenth and Fourteenth
Amendments to the United States Constitution, Utah Constitution Art. I., Sec. 2 and Sec. 15 and
42 U.S.C. 1983, 15 U.S.C. 1116, for declaratory and injunctive relief, for the purpose of
protecting and preserving the important associational rights, free speech, due process rights,
political power and rights, and trademark rights of the Constitution Party and its members in how
the party selects and endorses its nominees for elected office.
GENERAL ALLEGATIONS
9.
Governor Herbert signed SB54 into law which significantly amended the Utah
Election Code. SB54 compels political parties to submit to new and onerous requirements in
their nominating process.
10.
In particular, SB54 requires, with exceptions, that a political party submit to a
primary system for nominating candidates for political office. In the primary system, mandated
by SB54, an individual that seeks the nomination of a party must submit her or his name to the
state as a candidate and list her or his preferred party. The individual must also have obtained
the signatures of 2% of the party members in the state. The individual is not required to have
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signed a pledge to uphold and advance the party platform nor obtain the endorsement of the party
in any way prior to candidacy aside from that individual having obtained the signatures of 2% of
the party membership nor even be a member of the party.
11.
The Constitution Party prefers, in its judgment, to utilize the caucus/convention
system to choose candidates. The Constitution Party believes that it is important that under this
system an individual ultimately receives the majority of the votes. Constitution Party Bylaws
Art. IX.A http://www.constitutionpartyofutah.com/bylaws/, retrieved December 6, 2014. See
Exhibit A hereto.
12.
Conversely, under the scheme in SB54, the winning candidate in a primary
system only needs to obtain a plurality of the votes of party members to become a party
candidate. This means that the ultimate candidate, appearing under the partys banner and
ostensibly with the partys official endorsement, may be opposed by the majority of the partys
members, having obtained the most votes in a fractured, multi-candidate primary.
13.
The Constitution Party, in its judgment, believes that the caucus/convention
system has many benefits, which include, but are not limited to, encouraging the lively debate of
issues among party members, the obtaining of consensus on issues and candidacies, and
localization of control over party activities as opposed to the influence of the state and special
interests in party action.
14.
The Constitution Party has high standards for its candidates, and if a candidate
does not live up to these standards, the Constitution Partys executive committee has the power
to remove the partys endorsement. These standards are outlined in the Bylaws. For example,
the candidate is chosen according to:
a.
The candidates understanding of correct constitutional principles;
b.
The candidates ability to articulate these principles;
c.
The ability to dress and act in a manner that will give credit to the party
when appearing as the partys representative in public; and

d.
The desire to run for the designated office on the basis of principles rather
than personal interests.

15.
Further, endorsed candidates of the Constitution Party of Utah shall:

a.
Be members of the party in good standing, as defined in the party
constitution and Bylaws;

b.
Sign a pledge to abide by the state and national party platforms; and
c.
Be evaluated and endorsed by the candidates closest locally approved and
recognized party affiliate, corresponding to that political race.

16.
Furthermore, the Constitution Party bylaws require that:

a.
For State wide office, endorsement shall be by the state convention.
b.
Endorsement and support may be withdrawn by a three-fourths vote of the
executive committee when in their judgment the candidate criteria in the party
constitution and Bylaws have not been met. Such a candidate shall not use the
Constitution Party name and shall be subject to legal action for failure to comply.
http://www.constitutionpartyofutah.com/bylaws/, retrieved December 12, 2014. See

Exhibit A hereto.
17.
Great thought has gone into the Constitution Partys system of nominating a good
candidate with good character and qualifications. SB54 substitutes the partys judgment with a
system that the state thinks is better. In particular, SB54 does not allow the Constitution Party to
remove its nominee and replace her with another, does not allow the Constitution Party to require
the nominee to sign a pledge, does not allow the Constitution Party to require its nominee to
even be a member of the party, and does not allow the Constitution Party to hold a
caucus/convention system, with the votes of only party members to nominate candidates unless
the Constitution Party submits to qualifications that burden its associational rights.
18.
Under SB54, the state can use the Constitution Partys logo and name on the
ballot for an individual who does not meet the criteria of the Constitution Partys Bylaws. This
is a violation of the partys and members First Amendment rights of free speech and association.
It imposes a severe burden on all parties, and it imposes a severe burden to the Constitution Party
in particular.
19.
When SB54 was passed, the legislature was comprised entirely of Republicans
and Democrats. These two major parties have essentially told all other political parties how their
candidates will be chosen. This will likely work to marginalize and weaken smaller parties.
20.
The Republican Party currently enjoys a supermajority in the state legislature and
controls the Governors office. http://www.deseretnews.com/article/865616838/Utah-GOP-
fractured-over-Count-My-Vote-lawsuit.html?pg=all, retrieved December 15, 2014. See Exhibit

A hereto.
21.
Smaller political parties are especially vulnerable to the consequences of SB54.
In particular, larger parties may manipulate smaller parties that it believes are spoilers by
creating dummy memberships, running Manchurian candidates, and engaging in party raiding.
Such tactics have been documented.
http://www.freep.com/apps/pbcs.dll/article?AID=/20120228/NEWS15/120228049/ManyDemocrats-voting-Santorum-Paul-deny-Romney-Michiganwin&odyssey=mod%7Cbreaking%7Ctext%7CFRONTPAGE and
http://abcnews.go.com/blogs/politics/2008/05/is-limbaughs-op/, retrieved December 10, 2014.
See Exhibit A hereto. SB54 makes this easier to do because the candidate does not even have
to be a member of the party. Although the primary may be for members-only, individuals may
easily become a member of the party without any oversight by party officials to ensure that they
are not really spoilers or raiders like those who participated in Rush Limbaughs Operation
Chaos. For example, SB54 takes away the Constitution Partys ability to assure that delegates
are members in good standing for at least ten days prior to voting. Constitution Party
Bylaws Art. VI Voting C.2.
22.
In the national platform, the party explicitly opposes burdens on electoral
processes. Additional restrictions and obligations governing candidate eligibility and campaign
procedures burden unconstitutionally the fairness and accountability of our political system.
http://www.constitutionparty.com/election-reform/. See Exhibit A hereto.
7
23.
It is part of the Constitution Partys political message that regulations like SB54
are undesirable and unconstitutional.

24.
The Constitution Party believes, in its judgment, that the caucus/convention
system protects the party and its message against such interference. The legislature, controlled
by a supermajority by the Republican Party, should not be allowed to substitute its judgment for
that of the private political parties and individuals of Utah because governments derive[e] their
just powers from the consent of the governed. Declaration of Independence 2. SB54 turns
this principal on its head by having the government dictate to individuals and private political
parties how they choose nominees for public office.
25.
Under SB54, a candidate could be nominated by the Constitution Party but
designated unaffiliated on the ballot. At the same time, an individual not nominated by the
Constitution Party could have the partys name and logo associated with it. The State of Utah
and Defendants would be misleading the voters and forcing the political association and
disassociation of individuals contrary to the partys will.
26.
Since SB54 uses the term unaffiliated for those candidates who have not won
the primary, it is strongly implied that the candidates who did win the primary (but not the
caucus/convention vote) and who have the party name and logo associated with them, are
affiliated with the party. The term affiliated means officially connected with. Since the
candidate may not actually be officially connected with the party, the ballot will mislead voters.
27.
SB54 works an especial hardship on smaller political parties and their potential
candidates because smaller parties and their potential candidates have fewer resources to appeal
8
to a widespread group of people. The caucus system allows the candidates to appeal to delegates
at the convention itself instead of producing signs, radio ads, mass mailing or other methods of
expensive advertising.
28.
The Constitution Party of Idaho recently had to deal with problems created by
Idahos law which has some similarities to SB54. One newspaper reported that the Constitution
Party Rejects own Candidate for Guv, but He Remains on Ballot.
http://www.spokesman.com/blogs/boise/2014/aug/13/constitution-party-rejects-own-candidateguv-he-remains-ballot/, retrieved December 15, 2014. See Exhibit A hereto.
29.
When a political party is forced to run a candidate that is listed as unaffiliated
on the ballot against another candidate it has rejected who enjoys the benefit of the name of the
party on the ballot, the partys associational rights have been severely burdened and its rights to
exercise political power under Utah Constitution Art. I. Sec. 2 have been harmed.
30.
The State of Utah does not have a compelling interest in forcing the use of a
primary system because the caucus/convention system addresses the states interest adequately.
In other words, the state must prove that the marginal benefit, if any, of a primary system over a
caucus system is compelling if the state wants to justify its violation of the Constitution Partys
associational rights.
31.
SB54 is not narrowly tailored to address the states interest and the states interest
could be addressed in many less burdensome ways.

32.
Not only does SB54 prevent the Constitution Party from holding a
convention/caucus system to nominate its candidate, it also prevents the Constitution Party from
9
choosing any other kind of democratic system such as having a run-off primary, an election with
seniority system (as many state bar sections use for the election of its officers), a weighted
primary or any other system calculated to obtain the best individuals to represent the party.
33.
SB54 does allow a political party to have a caucus/convention system with a
major qualification: the party must allow non-members to vote. This qualification leads to the
same problem that the primary system does and is a violation of the partys associational rights.
It allows the possibility of outside influence and party raiding. It takes away the partys ability to
ensure that members are in good standing and that delegates have been members for at least 10
days. It takes away the partys ability to ensure that those who vote and those who run have
signed a pledge supporting the party platform. In all of these ways, SB54s modified
caucus/convention system places a severe burden on the partys association rights under the First
Amendment and otherwise violates the Constitution Partys rights and powers under the Utah
and United States Constitutions.
34.
Although SB54 allows a closed primary system, it is essentially open to any
voter who wishes to easily register as a party member without oversight by the party.
FIRST CLAIM FOR RELIEF
(Declaratory Judgment)
35.
The Constitution Party incorporates by this reference all other allegations of this
Complaint.
36.
An actual controversy exists between the Constitution Party and the Defendants
over the constitutionality of SB54. The Court should declare, pursuant to 28 U.S.C. 2201, that:
10
a.
SB54 is a facial violation of the Constitution Party and its members right
to peaceably assemble and seek redress of grievances under the First and Fourteenth
Amendments of the United States Constitution.
b.
SB54 is an as-applied violation of the Constitution Party and its
members right to peaceably assemble and seek redress of grievances under the First and
Fourteenth Amendments of the United States Constitution.
c.
to exercise political power under Utah Constitution Art. I, Sec. 2 and their individual
sovereignty and unenumerated rights recognized in the Ninth and Tenth Amendments
and substantive due process rights under the Fourteenth Amendment of the United States
Constitution.
d.
members right to exercise political power under Utah Constitution Art. I, Sec. 2 and
their individual sovereignty and unenumerated rights recognized in the Ninth and Tenth
Amendments and substantive due process rights under the Fourteenth Amendment of the
United States Constitution.
e.
to Free Speech under the First and Fourteenth Amendments of the United States
Constitution and the Utah Constitution Art. 1, Sec. 15, as a content based restriction
insofar as it forces the party and its members to endorse a candidate that the party or
members do not choose to endorse.
11
f.
members right to Free Speech under the First and Fourteenth Amendments of the United
States Constitution and the Utah Constitution Art. 1, Sec. 15, as a content based
restriction insofar as it forces the party and its members to endorse a candidate that the
party or members do not choose to endorse.
g.
to Free Speech under the First and Fourteenth Amendments of the United States
Constitution and the Utah Constitution Art. 1, Sec. 15 as an impermissible time, place
and manner restriction because it is not a reasonable regulation, not in proportion to the
interest served, and not narrowly drawn to meet that interest.
h.
members right to Free Speech under the First and Fourteenth Amendments of the United
States Constitution and the Utah Constitution Art. 1, Sec. 15 as an impermissible time,
place and manner restriction because it is not a reasonable regulation, not in proportion
to the interest served, and not narrowly drawn to meet that interest.
i.
SB54 is a facial violation of the Constitution Party and its members equal
protection rights under the Fourteenth Amendment of the United States Constitution and
the Utah Constitution Art. I, Sec. 2 insofar as it gives preference to those political parties
that abandon their rights to assemble in order to secure their party logo on the ballot, thus
showing the voters that the state prefers or endorses those parties that give up their rights.
12
It also is an equal protection violation insofar as it prefers or benefits larger parties at the
expense of smaller parties.
j.
members equal protection rights under the Fourteenth Amendment of the United States
Constitution and the Utah Constitution Art. I, Sec. 2 insofar as it gives preference to those
political parties that abandon their rights to assemble in order to secure their party logo
on the ballot, thus showing the voters that the state prefers or endorses those parties over
others. It also is an equal protection violation insofar as it prefers or benefits larger
parties at the expense of smaller parties, such as the Constitution party.
37.
The Constitution Party hereby incorporates by reference paragraphs 110 through
112 of the Republican Party Complaint and applies the same to itself.
SECOND CLAIM FOR RELIEF
(Injunction)
38.
Complaint.
39.
SB54 constitutes an imminent and ongoing threat by the State of Utah, acting by
and through Defendants, to deprive the Constitution Party and its members of their
constitutionally protected rights.
40.
The Constitution Party and its members will suffer irreparable harm by the
enforcement of SB54.
13
41.
The Court should enter a declaratory judgment and enter a permanent injunction
enjoining enforcement of SB54 to the Constitution Party.

THIRD CLAIM FOR RELIEF
(Trademark Infringement)
42.
Complaint.
43.
The Constitution Party has developed a common law trademark and good will
associated with its name The Constitution Party. Members of the public recognize the
trademark and name and associate with it certain ideas and reputation.
44.
SB54 destroys and/or infringes on the Constitution Partys trademark, good will,
and name by appropriating the same for candidates who may have no endorsement by the party
but who the state deems should have the name and good will associated with them.
45.
Enforcement of SB54 will likely cause confusion among voters and misattribution
of support for or votes against the party and the candidates it truly endorses.
46.
This causes irreparable harm to the Constitution Party and therefore the Court
should enjoin Defendants from enforcing SB54 in a manner that would infringe upon the
Constitution Partys rights as alleged herein.
47.
SB54 constitutes common law trademark infringement and willful infringement
under the common law.

48.
Unless the Defendants are preliminarily and permanently enjoined from further
infringement, the party will continue to suffer irreparable harm. A permanent injunction is
14
necessary to prevent the Defendant from further interference with the partys common law
trademark rights.
FOURTH CLAIM FOR RELIEF
(Damages, Costs and Attorneys Fees)
49.
Complaint.
50.
The Court should enter judgment awarding the Constitution Party its damages and
costs of suit, including reasonable attorneys fees under 15 U.S.C. 1117 and 42 U.S.C.
1983, 1988.
PRAYER
Wherefore, the Court should enter judgment in favor of the Constitution Party as follows:
1.
The Court should declare that SB54 is unconstitutional for the reasons herein
elucidated.
2.
The Court should permanently enjoin Defendants from enforcing SB54.
3.
The Court should find that SB54 constitutes an imminent trademark violation of
the Constitution Partys name and logo and award damages based thereon.
4.
The Court should award damages, costs and attorneys fees as provided by law.
15
DATED this _____ day of December, 2014.

Collin R. Simonsen
Gregory M. Simonsen
Attorneys for Plaintiff and Intervenor
Constitution Party of Utah
Plaintiffs Address:
1312 West 8780 South
West Jordan, UT 84088
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Exhibit A
to
Complaint
Exhibit B
Case2:14-cv-00876-DN
2:14-cv-00876-BCWDocument
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Marcus R. Mumford (12737)

MUMFORD PC
405 South Main Street, Suite 975
Salt Lake City, Utah 84111
Telephone: (801) 428-2000
Email: mrm@mumfordpc.com
Attorney for Plaintiff Utah Republican Party
Plaintiff,
COMPLAINT
v.
Case No. 2:14-cv-00876
GARY R. HERBERT, in his Official
Capacity as Governor of Utah, and
SPENCER J. COX, in his Official Capacity
as Lieutenant Governor of Utah,
Defendants.
Plaintiff Utah Republican Party (Party) hereby complains and alleges as follows:
1.
The First and Fourteenth Amendments to the United States Constitution guarantee
to the Party and its members the right to associate in a political party, the right to act and govern
themselves as a political party, the right to vote as a party in Utah elections, the right to define
who belongs to the Party, the right to determine for itself the Partys platform and message, the
right to allocate its name, title, emblems, and endorsements to those candidates it believes will
best represent the Partys political platform, the right to determine for itself the candidate
selection process that will produce the nominee who best represents the Partys political
platform, and to not be deprived of those rights without due process of law. These are core
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Constitutional freedoms held individually and collectively by the members of the Utah
Republican Party, and by the Party itself.
2.
While Utah election law may govern the time, place, and manner of elections, it
must accommodate and respect the rights of political parties operating within its boundaries,
especially the Partys rights to determine for itself how its nominee standard bearers are selected.
3.
The Supreme Court of the United States has stated:
In no area is the political associations right to exclude more important than in the
process of selecting its nominee. That process often determines the partys
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 partys
ambassador to the general electorate in winning it over to the partys views.
Unsurprisingly, our cases vigorously affirm the special place the First
Amendment reserves for, and the special protection it accords, the process by
which a political party select[s] a standard bearer who best represents the partys
ideologies and preferences. The moment of choosing the partys nominee, we
have said, is the crucial juncture at which the appeal to common principles may
be translated into concerted action, and hence to political power in the
community.1
4.
Earlier this year, the Utah Legislature enacted, and Governor Gary R. Herbert
(collectively, with the Utah Legislature, the State) signed into law, Senate Bill 54 (SB54),
which amended the Utah election code.
5.
With SB54, the State has now imposed on the Party a byzantine regimen of rules
and internal processes that is different than the rules and processes the Party has chosen for itself
to ensure that its nominees represent its political platform.
California Democratic Party v. Jones, 530 U.S. 567, 575 (2000) (quoting Tashjian v.
Republican Party of Connecticut, 479 U.S. 208, 216 (1986), and Eu v. San Francisco County
Democratic Central Committee, 489 U.S. 214, 224 (1989)).
2
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6.
Those responsible for SB54 have admitted that the intent of the law was not
viewpoint neutral, as it was enacted to produce Party nominees for elected office who will
represent different priorities and views than the political views of Party and its members and
to make the Partys winning candidates less responsive and accountable to the Party and its
Platform.2
7.
SB54 threatens to deprive the Party of the rights it should enjoy as a political
party, and did enjoy prior to SB54, and Party should not be forced to go along with the stated
purpose of SB54 to impose changes on the Partys message and the priorities expressed by the
Party in its chosen candidate selection process, and the level of responsiveness and
accountability to its Platform that the Party requests of its candidates who win elections.3
8.
SB54 unconstitutionally burdens the rights of the Party by, among other things,
(1) misappropriating the Partys right to control its endorsement of candidates for elected office,
and to select and endorse nominees on the general election ballot who will best represent the
Partys political platform, (2) supplanting the Partys judgment with the judgment of the State as
to the Partys chosen candidate selection process according to what is most likely to produce
nominees who best represent the Partys political platform, (3) imposing a candidate selection
process on the Party that dilutes the primacy of its political platform and messaging in its chosen
candidate selection process, (4) mandating that the Party agree to an open or direct primary
election to select its candidates where the State allocates to itself the power to designate who will
See Count My Vote, Why Change Utahs Election System?, available at

http://www.countmyvoteutah.org/facts (as accessed October 16, 2014) (hereinafter Count My
Vote).
3
Compare Count My Vote, with Utah Republican Party Bylaws (hereinafter Bylaws) 8.0.A
(v. 2013 Official).
3
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appear on the general election ballot as the Partys nominees for elected office, without
commensurate consideration in how it has not ensured that the Partys candidates are actually
selected by its members, or that the nominees are members of the Party, and (5) threatening to
deprive the Party of its right to endorse candidates on the general election ballot if it does not
comply with the States mandated candidate selection process.
9.
SB54 violates the Partys constitutional right to free association and infringes on
its rights to free speech and due process, its ability to control its own brand and message, and its
authority over its endorsement, name, and emblems.
10.
By this action, the Party seeks a Court order striking down SB54 as an
unconstitutional infringement on the rights of the Party and its members.

PARTIES AND JURISDICTION
11.
Plaintiff Utah Republican Party is an unincorporated association established under
Title 20A of the Utah Code, with its principal place of business in Salt Lake County, Utah.
12.
Defendant Gary R. Herbert is the Governor of Utah and, in that capacity,
supervises the official conduct of all executive and ministerial officers, including those
responsible for the enforcement of SB54.4
13.
Defendant Spencer J. Cox is the Lieutenant Governor of Utah and, in that
capacity, also the chief election officer of Utah pursuant to Utah Code 67-1a-2(2)(a), and
responsible for the enforcement of SB54.
14.
Defendants are responsible for the administration of Utahs election process,
including overseeing all voter registration activities, and coordinating with local, state, and
Utah Code Ann. 67-1-1(1).

4
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federal officials to ensure compliance with state and federal election laws, including SB54.5
15.
This Court has jurisdiction pursuant to 28 U.S.C. 1331 and 1343, in that it
presents a federal question involving constitutionally protected rights. Declaratory and injunctive
relief is authorized by 28 U.S.C. 2201 and 2202.
16.
Venue is proper in this Court pursuant to 28 U.S.C. 1391.
17.
This case is brought pursuant to the First and Fourteenth Amendments to the
United States Constitution, and 42 U.S.C. 1983, for declaratory and injunctive relief, for the
purpose of protecting and preserving the important associational rights, free speech and due
process rights, and trademark rights of the Party and its members in how the Party selects and
endorses its nominees for elected office.
GENERAL ALLEGATIONS
Current Utah Election Law
18.
The people of Utah currently choose persons to serve as their federal, state, and
local government representatives by way of a biennial general election held throughout the state
on the first Tuesday after the first Monday in November of each even-numbered year.6
19.
Recognizing the rights of its like-minded citizens to organize in political parties to
select and endorse candidates for office who best represent the ideologies and preferences of
those parties members, Utahs election code currently provides for like-minded voters to
organize as registered political parties in order, inter alia, to place names of candidates
representing that organization upon the primary and regular election ballots under the common
5
6
Id. 20A-2-300.6(2)(b)
Id. 20A-1-201.
5
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organization name.7
20.
Utah code requires that the paper ballots, electronic ballots, and ballot sheets used
in the States general elections shall designate, where appropriate, the endorsements of political
parties nominating candidates, including by way of a political partys name, title and emblem.8
21.
To communicate these party endorsements to general election voters, Utah code
mandates that the State ensure that each person nominated by any political party is placed
on the ballot under the party name and emblem and listed by party on a paper ballot, or that
the party designation of each candidate is printed [or displayed] immediately adjacent to the
candidates name on a ballot sheet or electronic ballot.9
22.
Utah code also mandates that the State ensure that the paper or electronic general
election ballots or ballot sheets be designed to allow for voting by a straight party ticket, where
appropriate.10
23.
Currently, Utah election code requires that registered political parties establish by
their constitution or bylaws a procedure for selecting party candidates at the federal, state, and
county levels that allows active participation by party members,11 but it otherwise leaves it to
political parties to determine for themselves how to select candidates who best represent their
partys ideologies and preferences and respects the rights of those parties to certify to the State
the names of their preferred candidates for elective office to be voted on in the general election.12
24.
7
Under Utah law, an organization of voters can qualify as a registered political
Id. 20A-8-102(2).
20A-6-301.
9
Id. 20A-6-301(1)(d)-(g) & -301(2)(a), -302(1)(a), -303(1)(g), & -304(1)(g).

Id. 20A-6-305(4)(d).
11
Id. 20A-8-106, 20A-8-401(2)(c).
12
Id. 20A-9-701(1)
10
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party in a number of ways, including, in the case of the Party, by having participated in the last
general election and, in at least one of the last two regular elections, polled a total vote for any of
its candidates for any office equal to 2% or more of the total votes cast for all candidates for the
United States House of Representatives in the same regular election.13
25.
A candidate for elected office in Utah may qualify for the general election ballot
by filing a declaration of candidacy, and, depending on whether the candidate wants to appear
with the endorsement of a political party or unaffiliated, by either:
a. Having the persons political party certify to the State that the person is the partys
endorsed and selected nominee;14 or
b. Complying with the election codes requirements for appearing as an unaffiliated or
write-in candidate.15
26.
To comply with the requirement that a registered political party have a procedure
for selecting party candidates at the federal, state, and county levels that allows active
participation by party members, Utah code currently allows, but does not require, that a
registered political party may choose[] to use the States primary election process to nominate
some or all of its candidates.16
27.
The Utah election code currently recognizes, as it must, that the States
procedures for a primary election cannot govern or regulate the internal procedures of a
registered political party.17
13
Id. 20A-8-101.
Id. 20A-9-701.
15
Id. 20A-9-501(1), -601(1)
16
Id. 20A-8-401(2)(c) & -9-403(1)(b).
17
Id. 20A-9-401(2).
14
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28.
Otherwise, Utahs current election code largely leaves it up to the registered
political party to determine for itself the process by which it select[s] a standard bearer who best
represents the partys ideologies and preferences.18
29.
Critically, under the pre-SB54 version of the election code, the Party retained to
itself the right to certify to the Utah Lieutenant Governor and other elected officials the names of
those standard bearer nominees who prevail in its chosen candidate selection process.19
The Utah Republican Partys Candidate Nomination Process
30.
For purposes of participating in Utah elections, voters have organized as the Utah
Republican Party to nominate and support the election of Republican candidates in partisan
races for public office, promote the principles set forth in the State Party Platform, and perform
Party functions set forth in the election laws of the State of Utah and the Constitution and
Bylaws of the Party.20
31.
The Utah Republican Partys roots in Utah reach back to before it became a state
on January 4, 1896.
32.
The Party is a registered political party, as that term is used in the current version
of the Utah election code, and is the most dominant party in the State, in terms of the number of
its members and in the success it has had electing its nominees to office at the federal, state, and
local levels.
33.
The Party has adopted a constitution and bylaws and received certification from
18
Jones, 530 U.S. at 575; see also New York Bd. of Elections v. Lopez Torres, 552 U.S. 196, 202
(2008) (citing Democratic Party of United States v. Wisconsin ex rel. La Follette, 450 U.S. 107,
122 (1981), and Jones, 530 U.S. at 574-75).
19
Id. 20A-9-202(4) & -9-701.
20
Utah Republican Party Constitution (hereinafter Party Const.), Art. I.B (v. 2013 Official).
8
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the State that it is recognized as a registered political party under the Utah election code.
34.
The Party has adopted a platform to express its common message on the timely
political issues of the day.

35.
The Party has determined the candidate selection process that will in its view
produce the nominee who best represents its political platform.

36.
That process involves a combination of a caucus/ convention and primary
election, where the members of the Party, organized by precincts, hold neighborhood caucus
meetings at a designated time and, among other things, elect a member or members of their
neighborhood to serve as delegates to the Partys county and state nominating conventions where
those delegates nominate the Partys candidates for partisan federal, state and local government
elected offices, the names of those Party nominees to be certified by the Party to the respective
Utah county clerks or Utah lieutenant governor immediately thereafter.21
37.
The Partys Constitution and Bylaws establish the procedures for its
neighborhood caucus meetings.

a. The Partys Constitution and Bylaws provide that while the caucus meetings are open
to the public, only registered Republican Party members may participate, and any
officer, delegate, candidate or registered affiliated voter of a rival political party in the
state is not allowed to participate.22
b. The Partys Bylaws mandate that participants start all caucus meetings with, among
other things, a prayer, the recitation of the pledge of allegiance, and a reading of the
Partys platform, and only after those agenda items do the members select delegates
21
22
Id. Art. XII.1.A-.B & .2.A-.J.

Id. Art. XII.1.A; Bylaws 9.A.3.
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to the county and state nominating conventions.23

38.
The Partys Constitution and Bylaws establish the rules and procedures for its
county and state nominating conventions.

a. Similar to the neighborhood caucus meetings, the county and state nominating
conventions are open to the public, but participation is limited to those delegates
selected at the Partys neighborhood caucus meetings to nominate candidates for
partisan elective office and adopt the Party platform.24
b. The Partys Bylaws provide that only Republican candidates who have properly filed
for elected public office as required by Utah election law and who also meet the
requirements of the Utah Republican Party will be considered by the convention.25
c. The Partys Bylaws require that any candidate wishing to run for the Partys
nomination to elected office must sign a disclosure statement regarding the Party
Platform, and submit it to the Partys headquarters at least 30 days prior to the
convention, which the Party makes available to all delegates attending the
convention, so that the Partys delegates may consider in advance a candidates
support for and acceptance of the Platform as the standard by which that candidate
will be evaluated as the holder of public office.26
d. In the Party Platform disclosure statement, the candidate running for the Partys
nomination and endorsement must certify that he or she is not a candidate, officer,
delegate nor position holder in any party other than the Republican party and either:
23
Bylaws 9.0.B.
Party Const. Art. XII.3.A.
25
Bylaws 7.5.I.1.
26
Id. 8.0.A.
24
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i. that the candidate has read the Utah Republican Party Platform and
support[s] and accept[s] it as the standard by which my performance as a
candidate and as an officeholder should be evaluated; or
ii. that the candidate has read the Utah Republican Party Platform and, with
exception of provisions from the Platform specifically noted by the candidate,
candidate and as an officeholder should be evaluated.27
e. In the event that any candidate fails to submit a disclosure statement as required, the
Party Chairman must announce this failure to the delegates prior to balloting for that
candidates office, so that the Partys delegates may consider the candidates failure
in that respect in their selection of a nominee.28
f. Except for those situations where a candidate is running unopposed, the Party
Constitution requires that delegates cast votes at the convention to select the Partys
nominee for elected office only after substantive nominating and acceptance speeches
are made to the delegates by the individual candidates or on behalf of the individual
candidates running for the Partys nomination.29
39.
In the event a field of candidates is more than two, for a single elected office, the
Partys constitution provides for the use of multiple ballots until the field is winnowed to the top
two candidates, or until a candidate receives 60% or more of the delegate vote cast for the office
(the Convention Threshold), in which case, that candidate is certified by the Party to the
27
Id. 8.0.A.
Id. 8.0.B.
29
Party Const. Art. XII.2.F.
28
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States election officer to appear on the general election ballot as the Partys endorsed nominee.30
40.
If no candidate receives 60% or more of the delegates vote at convention as to a
single elected office, the Party nominates both candidates to run in a primary election conducted
in accordance with Utah election code.31
41.
Pre-54 Utah code allows the Party to choose[] to use the primary election
process to nominate some or all of its candidates.32

42.
Pre-54 Utah code provides that each registered political party that wishes to
participate in the primary election, may decide for itself whether its primary is going to be
closed or open to members of other political parties or unaffiliated persons.33
43.
The Republican Partys Constitution mandates that only voters who are registered
Republicans may vote in a Republican primary election.34

44.
Because the Partys convention system only chooses to use Utahs primary
election process to nominate as between the top two candidates where neither received more than
60% at convention, the current version of Utahs primary election process guarantees that the
nominee winning that primary election will have received a majority of votes cast.35
45.
The purpose of these rules and procedures is to promote the principles set forth
in the State Party Platform in the nomination of Republican candidates for elected office by,
among other things, (1) limiting participation at the Partys caucuses and county and state
nominating conventions to Party members, (2) mandating neighborhood caucuses begin with a
30
Id. Art. XII.2.H-.J.

Id. Art. XII.2.I & .5.A.
32
Utah Code Ann. 20A-9-403(1)(b).
33
Id. 20A-9-403(2)(a).
34
Party Const. Art. XII.5.B.
35
Utah Code Ann. 20A-9-403(5)(a).
31
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prayer, a pledge, and a review of the Partys platform, (3) requiring that all candidates seeking
the Partys nomination make disclosure statements regarding the Partys platform and
substantive speeches to delegates before the delegates vote, and (4) setting the designated vote
thresholds to require either a supermajority of delegates at convention or a majority of Party
members voting where the Party rules call for the use of Utahs primary election process.36
46.
After the convention and primary, the current Utah election code respects the
Partys right to certify to Utahs lieutenant governor the names of the Partys candidates and
nominees for elected office and places those candidates and nominees on the ballot with the
Partys endorsement, name and emblem to be voted upon at the regular general election.37
47.
The endorsement, name and emblem that the Party uses on its certifications and
for use on the general election ballot includes the following mark (Party Mark):
36
Party Const. Art. I.B.

Utah Code Ann. 20A-6-301(1)(d)-(g), -6-301(2)(a), -6-302(1)(a), -6-303(1)(g), -6304(1)(g) & 20A-9-701(1)(a).
37
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48.
As described above, the Partys candidate selection process, which the Party and
its members have determined and established for themselves, and which currently and essentially
only utilizes Utahs primary election process to allow Party members to elect by majority vote as
between two candidates for elected office where neither received more than 60% of the delegate
vote at convention, is a constitutionally protected activity.
The SB54 Movement
49.
As set forth above, prior to SB54, Utah law mostly left the manner in which a
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political party selected its nominees to the partys choice of internal process. For example,
registered political parties could choose to use a primary election process to nominate some or all
of its candidates, but were not required to use that process.38
50.
Beginning in approximately the spring of 2013, a handful of well-known,
influential, and self-described bipartisans began an effort to change the Utah election code for
the purpose of affecting the message and priorities expressed by the Utah Republican Party in
its chosen candidate selection process, and decreasing the level of responsiveness that Party
nominees who won election showed to the Party and its Party Platform.39
51.
They made, at the time, demands to Party leadership and its State Central
Committee that the Party change the rules and procedures governing its candidate selection
process. As set forth in the Party Constitution, its State Central Committee has the authority to
act as the Partys governing and policy-making body.40
52.
On or about April 12, 2013, these individuals sent Republican Party leaders, and
the State Central Committee, a letter to state that their group, which became known as Count My
Vote, registered as Utah Political Issues Committee Alliance for Good Government (collectively,
Count My Vote), would move forward with a ballot initiative to change Utahs election code
in a way that would affect the Partys power and influence, unless the Partys State Central
Committee voted, among other things, to: (1) change the Partys internal rules and procedures for
voting at its nominating conventions to eliminate multiple ballots and raise the Convention
Threshold to between 70-80%; (2) open caucus participation and allow absentee balloting; and
38
Id. 20A-9-403(1).
See, e.g., Count My Vote, Why Change Utahs Election System?, available at
http://www.countmyvoteutah.org/facts (as accessed October 16, 2014).
40
Party Const. Art. IV.A.
39
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(3) agree to implement other long-term internal or statutory solutions to provide stability and
predictability.
53.
In response to these efforts, the Partys State Central Committee voted multiple
times to reject Count My Votes demands that the Party change its rules under threat of a ballot
initiative that would impose change on the Party through the Utah election code.
a. On or about March 23, 2013, a special session of the State Central Committee met to
discuss the Count My Vote demands that the Party change its internal rules and
policies in the candidate selection process, and rejected most of them.
b. On or about April 13, 2013, the Partys State Central Committee rejected a proposal
to increase the Convention Threshold as Count My Vote had demanded.
c. On or about May 18, 2013, the Partys State Central Committee rejected a similar
proposal made to increase the Convention Threshold from 60% to 2/3rds or 66% of
delegates, as Count My Vote had demanded.
54.
After the State Central Committee rejected Count My Votes demands, on or
about May 18, 2013, the Partys delegates to the state convention also rejected a proposal to
increase the Convention Threshold from 60% to 2/3rds or 66% of delegates, and voted to table
indefinitely a proposal to increase the Convention Threshold from 60% to 70%.
55.
After the Party refused these proposals originating from outside groups to affect
the Partys priorities and messaging through the internal rules and procedures governing its
candidate selection process, some of the same influential Utahns making the demands, it what
was described as a bipartisan group of unaffiliated, Democratic Party members, and dissatisfied
Republicans, moved forward as a Utah Political Issues Committee called Alliance For Good
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Government, or Count My Vote, with efforts to organize and fund a ballot initiative to impose
reforms on the Party through the Utah election code that the Party, its governing body, and its
delegates had rejected.
56.
Count My Vote proceeded to raise large sums of money from a few, wealthy
donors who shared its views and desire to change, from the outside, the Partys priorities and
messaging by enacting reforms in the Utah election code that would force the Party to change the
internal rules and procedures governing its candidate selection process.
57.
Count My Vote registered its initiative and began its effort to obtain the
signatures required by law to have an initiative submitted to a vote of the people of Utah.
58.
Significantly, Count My Vote, and its supporters, admitted and touted the
initiative as a bipartisan effort, intent on affecting the priorities and messaging of the Party, as
the dominant political party in Utah, through reforms in the Utah election code that would force
the Party to change the internal rules and procedures governing its candidate selection process,
promising thereby to take away the power of the Party and its members, reallocate the Partys
nominations to candidates with less extreme views, and cause those Party nominees who won
election to be less responsive to the Party and its Party Platform in how they governed as federal,
state and local representatives.41
59.
During the 2014 legislative session, Count My Vote organizers began working
with various Utah lawmakers to enact their initiative by statute, with its intended effects.
60.
From these efforts, the Party understands that organizers of Count My Vote and
Utah lawmakers struck what was characterized as a Grand Compromise to enact the Count My
41
See, e.g., Count My Vote, Why Change Utahs Election System?, available at
http://www.countmyvoteutah.org/facts (as accessed October 16, 2014).
17
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Vote ballot initiative into law, with other reforms, in what came to be known as SB54, amending
the Utah election code.
61.
The Party understands that SB54 incorporated almost the entire language,
verbatim, of Count My Votes ballot initiative, with additional reform provisions imposed by the
State regarding the manner in which a political party chooses its nominees, and it is therefore
reasonable to impute to SB54 the intent of Count My Vote to change the Utah election code for
the purpose of affecting the influence of the Party, diluting and changing the message and
priorities expressed by the Party in its chosen candidate selection process, and decreasing the
level of responsiveness that Party nominees who win election commit to the Party and its
Platform. That the State was also involved in this effort to impose these changes on the Party
through the enactment of SB54 does not make the constitutional infringements it represents any
more acceptable. SB54 is scheduled to go into effect as of January 1, 2015.
The SB54 Amendments
Misappropriating A Partys Right To Certify And Endorse Its Nominees
62.
The amendments to the Utah election code enacted as SB54 begin with the State
misappropriating control from registered political parties in how their endorsements, names and
emblems are allocated to candidates for elective office and indicated on the general election
ballot.
63.
First, SB54 limits a political partys right to communicate its endorsement on the
ballot by prohibiting any endorsements, symbols, markings, or other descriptions of a

political party, or any indication that a candidate for elective office has been nominated by, or
has been endorsed by, or is in any way affiliated with a political party, except where the
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candidate is nominated by a political party in the manner approved and now mandated by the
State under Utah Code Ann. 20A-9-202(4) for presidential and vice-presidential candidates
(the Presidential Process), or under Utah Code Ann. 20A-9-403(5) for all other federal, state
or local candidates for elected office (the CMV Process).42
64.
Where a registered political party complies with SB54 and selects its nominees in
accordance with the States Presidential and CMV Processes, the State shall ensure that no
other person is placed on the ballot under that partys name, title or emblem.43
65.
But where a registered political party does not comply with SB54 and refuses to
nominate its candidates in accordance with the Presidential and CMV Processes, SB54 relegates
that partys nominees on the general election ballots to a column with the other unaffiliated
candidates without a party circle.44
66.
Finally, SB54 amended provisions of the Utah election code that govern the
placement and appearance of a political partys nominees on the general election ballots, ballot
sheets, and electronic ballots so that only those candidates who were nominated by a political
party in accordance with the Presidential and CMV Processes may be endorsed.45
67.
In summary, where the Utah election code once respected the rights of political
parties to establish their own procedure[s] for selecting party candidates at the federal, state,
and county levels as long as they allow[] active participation by party members,46 and to
42
Utah Code Ann. 20A-6-301(1)(a), as amended by Chapter 17, 2014 General Session
(hereinafter as amended).
43
Id. 20A-6-301(2)(a)(i) & (ii), as amended.
44
Id. 20A-6-301(1)(g), as amended.
45
Id. 20A-6-301(1)(d)-(g), -301(2)(a), -302(1)(a), -303(1)(g), & -304(1)(g), as amended.
46
Id. 20A-8-106, 20A-8-401(2)(c).
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place the names of those candidates under the parties name and emblem,47 the State is now
conditioning and limiting its prior respect for the rights of political parties to now only those
parties that select their nominees in accordance with the States mandated Presidential and CMV
Processes.48
Separating A Party From Its Candidates And Its Chosen Candidate Selection Process
68.
Other amendments to the Utah election code enacted as SB54 have the effect of
weakening the role a registered political party now has in how its nominees and candidates for
elective office are selected.
69.
SB54 amended the term candidates for elective office, once defined as the
person selected by a registered political party as party candidate[] to run in a regular general
election, to eliminate any reference to the political party, now defined as a person who file[s] a
declaration of candidacy under Section 20A-9-202 to run in a regular general election for a
federal office, constitutional office, multicounty office, or county office.49
70.
This is significant because SB54 also amended the form for a declaration of
candidacy. Prior to SB54, the person filing a declaration of candidacy would declare his or her
intention of becoming a candidate for the office of _____, as a candidate for the _____ party,50
and would only be displayed on the ballot if that political party certified the candidate as its
nominee to the Utah lieutenant governor and county clerks, who were then obligated to ensure
that the partys endorsement appeared on the ballot, as the partys nominee to be voted upon at
47
Id. 20A-6-301(2)(a).
Id. 20A-6-301(2)(a).
49
Compare id. 20A-9-101(1)(a), with id. 20A-9-101(1)(a), as amended.
Id. 20A-9-201(4)(a).
48
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the regular general election.51 But under the SB54 amendments, the person filing a declaration
under the amended election code now only states that he or she is seeking the nomination of the
_____ party, which is my preferred political party affiliation, and need not await the
certification or approval of any political party as long as the person was nominated under the
States Presidential or CMV Processes, which no longer give the political party any role in the
certification of its nominees to the State, and the election code authorizes Utahs lieutenant
governor to display the candidates name on the ballot as in the candidates declaration of
candidacy without any certification from the party and provides that [n]o other names may
appear on the ballot as affiliated with, endorsed by, or nominated by any other registered
political party, political party, or other political group.52
71.
Under SB54, the States CMV Process for selecting a partys nominees does not
require any statement from the individual candidate seeking a partys nomination as to the
partys platform or message, or even confirmation that the candidate seeking a partys
nomination is a member of that party, having actual affiliation with the political party as
opposed to just a statement of preferred affiliation.
72.
SB54 amended the election code to mandate that all candidates wishing to receive
the nomination of a registered political party (i.e., appear with a partys endorsement) on the
general election ballot shall be nominated in a regular primary election pursuant to the CMV
Process.53
73.
While the SB54 amendments left intact some prior language suggesting the
51
Id. 20A-6-301(2)(a), -9-701(1).

Id. 20A-9-201(1)(c), -9-201(4)(a) & -9-701, as amended.
53
Id. 20A-9-403(1)(a), as amended.
52
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choices a political party has regarding its participation in the States primary election process, the
nature of the choice is very different as a result of those SB54 amendments.
74.
Before SB54, a registered political party could choose[] to use the primary
election process to nominate some or all of its candidates,54 but after SB54, the choice was more
fundamentally whether that party chooses to have the names of its candidates for elective office
featured with party affiliation on the ballot at a regular general election: no more leaving
matters to the self-determination of a registered political party, if that party wishes to realize the
very purpose in organizing as a party in the first place, it shall comply with the requirements of
this section and shall nominate its candidates for elective office in the manner prescribed.55
75.
In case that was too subtle, SB54 prohibited the use or production of any general
election ballot that denotes affiliation between a registered political party and a candidate for
elective office who was not nominated in the manner prescribed in the States now-mandatory
Presidential and CMV Processes.56
76.
Finally, SB54 amended the election code to require that registered political parties
in Utah declare their intent almost a year in advance of the regular general election to either
participate in the next regular primary election, or forego having their candidates for elective
office featured on the ballot at the next general election.57
Diluting A Partys Message By Restricting Access To The General Election Ballot
77.
There is a reason supporters of SB54 were trying to herd political parties in Utah
into its proposed mandatory primary election process.

54
Id. 20A-9-403(1)(b).
Id. 20A-9-403(1)(b), as amended.
56
Id. 20A-9-403(1)(c), as amended.
57
Id. 20A-9-403(2)(a)(i), as amended.
55
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78.
SB54 eliminated the role and ability of a registered political party to choose its
preferred candidate selection process and certify its nominees to the State for offices to be voted
upon a the next general election,58 mandating instead that the States lieutenant governor shall
certify the names of each candidate nominated under the Presidential or CMV Processes for
offices to be voted upon at the regular general election, display those names on the ballot, and,
except as the State certifies, [n]o other names may appear on the ballot as affiliated with,
endorsed by, or nominated by any other registered political party, political party, or other
political group.59
79.
SB54 limits access to regular primary ballot of the registered political party
listed on the declaration of candidacy to only those candidates who can marshal resources to
obtain and submit a set of nomination petitions that was (i) circulated and completed in
accordance with Section 20A-9-405; and signed by at least two percent of the registered political
partys members who reside in the political division of the office that the person seeks.60
80.
And what is the purpose of these nominating petitions? SB54 creates a new
section of the election code devoted to the form and content of a nominating petition for the
gathering of signatures, including a Warning that it is misdemeanor for anyone to sign with a
false name or without the intent to become a registered voter by the time his or her signature is
certified, providing similar penalties for any malfeasance in the gathering of signatures.61 But the
description of nominating petitions is most notable for what it do not include: no place for a
meeting agenda of party members that involves a prayer, pledge and review of the party
58
Id. 20A-9-403(1)(b) & -9-701(1).

Id. 20A-9-701, as amended.
60
61
Id. 20A-9-405, as enacted by Chapter 17, 2014 General Session (hereinafter as enacted).
59
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platform; no place where a candidate is compelled to communicate his or her support for the
partys platform; no place for a meeting or gathering where party members would be informed
before making their selection whether the candidate has accepted the partys platform as the
standard by which his or her performance as a candidate and as an officeholder should be
evaluated; no requirement that the nominating petition even indicate what, if any, the persons
signature represents as it concerns the candidate.62
81.
SB54 seeks by its onerous signature-gathering requirements and mandatory
primary election process to force candidates seeking the nomination of a political party to divert
their time and energy in seeking the nomination away from communications to the political party
and its members that might compel a candidate to feel the need to be responsive to the political
party and its members, and to dilute the poignancy of the partys message and its power to
demand accountability of the candidates it nominates.63
82.
The number of signatures that SB54 requires for a candidate to qualify for a
partys primary ballot presents additional issues in this regard: petitions must be signed by at
least two percent of the registered political partys members who reside in the political division
of the office that the person seeks.64 A party that is more dominant in a particular political
division will suffer disproportionately from the effect and burdens of the States CMV Process.
83.
SB54 devotes significant attention to the process of verifying those signatures on
a nomination petition.65 On the one hand SB54 suggests that a candidate seeking the nomination
62
Compare id., with Bylaws 8.0.A.

e.g., Count My Vote, Why Change Utahs Election System?, available at
http://www.countmyvoteutah.org/facts (as accessed October 16, 2014.
64
Utah Code Ann. 20A-9-403(3)(a)(ii), as amended.
65
Id. 20A-9-403(3)(b)-(g), as amended.
See,
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of a political party may only count the signatures of that partys members, but elsewhere
allows the collection of signatures from non-party members, so long as those members later
register, avoiding the issue of how that requirement would be enforced.66
84.
The additional regulatory overhead that a candidate must manage as a result of
SB54 will affect the strategy and considerations that candidate will make in contemplating a race
for elected office as a partys nominee away from the political party and its platform and toward
considerations of meeting the States regulatory scheme.
85.
SB54 reallocated from registered political parties to the State the power to certify
for the county clerks the names of party candidates listed on the primary ballot, for purposes of
giving notice of the primary to voters.67 As a result, SB54 also takes away from Utah registered
political parties the right to determine for themselves how to resolve any of the membership
disputes that may arise with respect to the verification of nominating petitions.
86.
And SB54 amended the election code to provide for the CMV Process where the
State now certifies that [c]andidates receiving the highest number of votes cast for each
office at the regular primary election are nominated by their registered political party for that
office, pursuant to the candidates preferred party affiliation as displayed on the declaration of
candidacy, without the approval of that preferred partys organization.68
87.
SB54 did not limit the number of candidates who may run in the primary election
and certifies as a partys nominee only the candidate receiving the highest number of votes,
such that, under SB54, the State dictates and certifies a partys nominee without any guarantee
66
Id. 20A-9-403(3)(a)(ii) & -9-403(d)(iv), as amended.

Compare id. 20A-9-403(4)(c), with id. 20A-9-403(4)(c), as amended.
68
67
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that nominee will have ever received a majority vote from party members.69
88.
Because there is no restriction in the primary election procedures imposed by
SB54 that would limit the field to two candidates for offices where there can be only one office
holder elected, and because the CMV Process does not mandate election by a majority vote in
the regular primary election, it threatens to impose on a party a nominee who does not have
support from the majority of party members and may not even be a party member having only
designated the preferred party on his or her declaration for candidacy.70
Diluting A Partys Message By Forcing It To Open Its Primary To Unaffiliated Voters
89.
Finally, SB54 created a new class of registered political party, called qualified
political party, or QPP, which appears to be a Trojan horse mechanism to force an open
primary, where unaffiliated voters can vote on a partys nominees, on any political party who
may want to resist the other mandates of SB54.71
90.
To become a QPP, a registered political party may still use its convention system
but only as an alternative path for candidates to qualify for the primary election that SB54
mandates, and in order to qualify as a QPP, a party must agree (1) to open its primary elections
to unaffiliated voters; (2) either to allow remote voting at its conventions or a way to designate
alternates when a delegate cannot be present at the partys convention; (3) to not hold the
convention until after April 1; and (4) to certify that it will only permit its members to seek the
partys nomination either by way of the process in Utah Code Ann. 20A-9-407 (QPP
69
Id.
Id. 20A-9-201(1)(c), -9-201(4)(a) & -9-701, as amended.
71
Id. 20A-9-406, as enacted.
70
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Convention System), or the process in Utah Code Ann. 20A-9-408 (QPP Petition System).72
91.
Through the QPP designation, the rights that SB54 takes away from political
parties to endorse its nominees with the party name and emblem on the general election ballot is
now reserved for parties that either comply with the Presidential and CMV Processes, which
dilute the partys message as set forth above, or become QPPs, where candidates nominated
through the QPP Convention or Petition Systems can only become the partys nominee subject to
a primary election where persons unaffiliated with the party can vote.73
92.
Because SB54 mandates that unaffiliated voters be allowed to participate in QPP
primary elections, it gives the State the authority to dictate and certify the nominees of QPPs
emerging from a primary election without any guarantee that those nominees actually receive a
majority vote from party members.74
93.
SB54 requires that a QPP shall participate in a primary election where either
one or more candidates qualify as candidates under the QPP Convention System or two or more
candidates qualify as candidates under the QPP Petition System.75
94.
Because SB54 does not limit the number of candidates who may emerge from the
QPP Convention or Petition Systems, but mandates a primary election where there are multiple
candidates, under SB54, the State will dictate and certify the nominees of QPP emerging from
any primary election on the basis of the highest number of votes received and without any
guarantee that the nominee certified by the State received a majority vote from party members.76
72
Id. 20A-9-101(12), as amended, & -9-406(2)-(8), as enacted.

Id. 20A-9-101(12)(a), as amended, & -9-409, as enacted.
74
Id.
75
Id. 20A-9-409(4)-(5), as enacted.
76
Id. 20A-9-409(4)-(5), as enacted, & -9-403(5)(a), as amended.
73
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SB54 Burdens The Partys Rights

95.
SB54 takes effect January 1, 2015, and it burdens rights held individually and
collectively by the Party, and its members, in a number of ways, including the following:
96.
First, it takes away, and misappropriates to the State, the Partys right to certify
and endorse its nominees for elected office.

a. Where the election code previously respected the rights of the Party to certif[y]
[its] nominees for offices to be voted upon at the regular general election to the
lieutenant governor, who in turn would provide the names of those candidates to the
individual county clerks,77
b. as amended by SB54, the election code now mandates that Utahs Lieutenant
Governor certify himself the Partys nominees, without awaiting certification from
the Party, and prohibits the Party from being able to communicate its endorsement of
any other nominee on the ballot.78
97.
Second, it takes away, and misappropriates to the State, the Partys right to
communicate its endorsement on the general election ballot and to control the use of its name
and emblem on the ballot.
a. Where the election code previously respected the rights of the Party to establish its
own procedure for selecting party candidates at the federal, state, and county
levels as long as it allows active participation by party members,79 and to place
the names of its candidates under the Partys name and emblem, including with
77
Id. 20A-9-701(1).
Id. 20A-9-701(1)-(2), as amended
79
Id. 20A-8-106, 20A-8-401(2)(c).
78
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the Party Mark,80

b. as amended by SB54, the election code now
i. prohibits the Party from indicating any nominat[ion], affiliat[ion],
endorsement[], or symbols, markings, or other descriptions, on the ballot
unless it nominates its candidates pursuant to the Presidential or CMV
Processes, and
ii. strips the Party of its right to place the names of its nominees on the ballot under
its name, title or emblem, and
iii. if the Party refuses to comply, relegates the Partys nominees on the general
election ballots to a column with the other unaffiliated candidates without a
party circle.81
98.
Third, it takes away, and misappropriates to the State, the Partys right to
determine for itself the candidate selection process that will produce a nominee who best
represents the Partys political platform.
a. Where the election code previously allowed the Party to determine for itself the
candidate selection process to produce a nominee who would best represent the
Partys political platform, and allowed the Party to choose[] to use the primary
election process to nominate some or all of its candidates,82
b.
as amended by SB54, the election code now dictates that the Party shall comply
with the requirements of this section and shall nominate its candidates for elective
80
Id. 20A-6-301(2)(a).
Id. 20A-6-301(1)(d)-(g), -301(2)(a), -302(1)(a), -303(1)(g), & -304(1)(g), as amended.
82
See id. 20A-8-106, 20A-8-401(2)(c) & 20A-9-403(1)(b).
81
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office in the manner prescribed, if it desires to has its candidates appear on the
general election ballots featured with the Partys affiliation, prohibiting any affiliation
with the Party from appearing on the ballot if the Party does not comply with the
mandates of SB54 in nominating its preferred candidates for elected office.83
99.
Fourth, it burdens the Partys associational rights by mandating changes to the
Partys internal rules and procedures, at the threat of depriving the Party of its rights if it refuses
to comply, that disadvantage the Party, and that the Party has rejected and that conflict with the
rules the Party has determined for itself, as set forth in its Constitution and Bylaws, will produce
a nominee who best represents the Partys political platform.
election process to nominate some or all of its candidates, respecting that it may not
govern or regulate the internal procedures of a registered political party,84
b. as amended by SB54, the election code now dictates that, if the Party wishes to have
its candidates for elective office featured on the ballot, it shall comply with the
requirements of this section and shall nominate its candidates for elective office in the
manner prescribed,85 requiring a petition process that is more onerous for candidates
seeking the Partys nomination than candidates seeking the nomination of other
parties, and conflicting with the Partys Constitution and Bylaws that set the timing of
83
Id. 20A-9-403(1)(a)-(c) & -403(2)(a), as amended.

See id. 20A-8-106, -8-401(2)(c), -9-401(2), & -9-403(1)(b).
85
Id. 20A-9-403(1)(a)-(c) & -403(2)(a), as amended.
84
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the nomination process to allow meaning time to vet candidates86 and require, among
other things:
i. that its nominees be selected at state and county conventions by delegates who
are members of the Party and selected by other members at neighborhood
meetings that start with a prayer, the pledge and a review of the Partys
platform;87
ii. that its nominees themselves be registered members of the Party and otherwise
meet the Partys requirements to qualify for the Partys nomination;88
iii. that its nominees make disclosures to the Party that they are not a candidate,
officer, delegate nor position holder in any party other than the Republican
party and that they have read the Utah Republican Party Platform and either
support and accept that Platform as the standard by which my
performance as a candidate and as an officeholder should be evaluated or, with
exception of Platform provisions specifically noted by the candidate,
candidate and as an officeholder should be evaluated;89
iv. that its nominees be selected only after the Party confirms that the candidates
running have made these disclosures regarding the Partys Platform;90
v.
that its nominees be selected at conventions only after making substantive
86
See, e.g., Bylaws 7.0.A (mandating a letter of intent to be received by the Party at least 30
days before convention).
87
Party Const. Art. XII.1.A-.B, Art. XII.2.A-.J & Bylaws 9.0.A.3, 9.0.B.
88
Bylaws 7.5.I.1 & 8.0.A.
89
Id. 8.0.A.
90
Id. 8.0.B.
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nominating and acceptance speeches to the delegates voting;91 and

vi. that its nominees be selected by a supermajority of delegates at state and county
nominating conventions or a majority of Party members voting in primary
elections.92
100.
Fifth, it burdens the Partys associational rights, and the rights of disassociation,
by imposing upon the Party a nominee who may not necessarily be a Party member and without
guaranteeing that nominee has been selected by a majority of Party members participating in the
primary election.
election process to nominate some or all of its candidates, which as set forth above,
ensured that its nominees were Party members and that any nominee selected in a
primary election would be by a majority vote,93
b. as amended by SB54, the election code now dictates that the Party shall nominate its
candidates for elective office in the manner prescribed, by the Presidential and SMV
Processes, which require only that a candidate for the Partys nomination express his
or her preferred party affiliation and has no requirement that a nominee receive a
majority vote in the primary election.94
91
Party Const. Art. XII.2.F.

Id. Art. XII.2.H-.J & Art. XII.5.A-B; Utah Code Ann. 20A-9-403(5)(a).
93
See Utah Code Ann. 20A-8-106, 20A-8-401(2)(c) & 20A-9-403(1)(b); Party Const. Art.
XII.1.A-.B, Art. XII.2.A-.J & Bylaws 7.5.I.1 & 8.0.A.
94
Utah Code Ann. 20A-9-403(1)(a)-(c), -403(2)(a) & -403(5)(a), as amended.
92
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101.
Sixth, it takes away the Partys right to have its nominees commit themselves to
the Party Platform as the standard by which my performance as a candidate and as an

officeholder should be evaluated, and replaces it with a process that requires only that
candidates gather signatures.
Partys political platform, and the Party required that candidates for its nominations
make a certified disclosure to the Party that they have read the Utah Republican
Party Platform and support and accept that Platform as the standard by which
my performance as a candidate and as an officeholder should be evaluated, with any
exceptions notated,95
b. as amended by SB54, the election code now dictates that the candidates for the
Partys nomination need only complete and file nomination petitions to qualify for the
primary ballot, and that only the candidate who receives the highest number of votes
in the primary may appear on the ballot with the Partys endorsement.96
102.
Seventh, it burdens the Partys associational rights, and the rights of
disassociation, by taking away the Partys convention system as its preferred way of selecting
nominees and allowing a party to designate candidates in the primary election by convention
only if it agrees to open that primary election, that the State now mandates, to persons
unaffiliated with the Party.
95
See id. 20A-8-106, 20A-8-401(2)(c) & 20A-9-403(1)(b); Party Const. Art. XII.1.A-.B, Art.
XII.2.A-.J & Bylaws 7.5.I.1 & 8.0.A.
96
Utah Code Ann. 20A-9-403(3)(a) & -403(5)(a), as amended.
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election process to nominate some or all of its candidates, which as set forth above,
the Party utilized only where a candidate was unable to get more than 60% at the
nominating convention,97
b. as amended by SB54, the election code only allows the Party to utilize a convention
for the purpose of designating candidates for the primary election ballot, and only if
the Party adopts a new classification, where it changes its rules and procedures to:
i. allow unaffiliated voters to participate in the Partys primary election;
ii. allow delegates the right to vote remotely in the Partys convention or a
procedure for designating alternate delegate;
iii. delay its convention until after April; and
iv. allow candidates to circumvent the convention and qualify for the Partys
primary election ballot also through a petition process.98
c. In other words, the election code as amended by SB54 would only allow the Party to
retain its convention system if it agreed to open itself up to a process that allows
unaffiliated persons to vote in the Partys primary and does not require that the
winning candidate be selected by a majority of those participating in the Partys
97
See Utah Code Ann. 20A-8-106, 20A-8-401(2)(c) & 20A-9-403(1)(b); Party Const. Art.
XII.1.A-.B, Art. XII.2.A-.J & Bylaws 7.5.I.1 & 8.0.A.
98
Utah Code Ann. 20A-9-101(12), as amended, & -9-409, as enacted.
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primary.99
103.
Eighth, SB54 burdens the Partys rights of association, free speech and due
process by, among other things, opening the Party up to unknown means of manipulating the
process by which its nominee is selected, as compared to the proven candidate selection process
it selected for itself; not providing adequate measures to ensure that its candidate selection
process is not diluted or manipulated by persons not affiliated with the Party; imposing
restrictions beyond those chosen by the Party in how it is defined or governed; undermining the
secrecy of the ballot in how persons signing nominating petitions must disclose their name and
addresses and cannot remove that information; having as its intent discrimination based on
viewpoint; requiring that candidates for the Partys nomination modify their message as a result
of the law; discriminating against the Party in the threshold it requires; setting a time earlier than
the Party designated for itself to start the candidate selection process.
104.
In summary, SB54 violates the Partys constitutional right to free association and
infringes on its rights to free speech and due process, its ability to control its own brand and
message, and its authority over its endorsement, name, and emblem, by substituting its judgment
for the judgment of the Party in how it selects nominees who best represents its political
platform, by threatening to deprive the Party of its rights and recognition as a registered political
party in the state unless it complies with the States mandates, which limit those rights.
105.
If the State is permitted to enforce SB54, contrary to the rights of the Party, the
conduct of primary and general elections in the State will be unconstitutional, result in legal
challenges, creating substantial risk that the results would be invalidated, and requiring that the
99
Id.
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State would be forced to conduct additional primary elections and general elections at great
expense. The costs, delays, and uncertainties in the political process engendered by the
enforcement of SB54 events will irreparably injury the Party, its members and all other voters in
the State.
106.
Voiding SB54 by court order is the only means to fairly and adequately protect
the Partys and its members constitutional rights.

FIRST CAUSE OF ACTION
For Declaratory Relief Establishing The Unconstitutionality of SB54 For Violating The
Partys Rights
107.
Plaintiff incorporates and realleges the preceding paragraphs as though set forth at
length in this cause of action.

108.
This claim for relief arises under the First and Fourteenth Amendments to the
United States Constitution, and 42 U.S.C. 1983.

109.
An actual controversy exists between the Party and the State of Utah with regard
to the exercise of constitutionally protected First Amendment associational rights.

110.
The Party is entitled to a declaratory judgment establishing the unconstitutionality
of the SB54 as applied to the manner in which

a. the State has taken away and misappropriated the Partys right to certify and endorse
its nominees for elected office;
b. the State has taken away and misappropriated the Partys right to communicate its
endorsement on the general election ballot and to control the use of its name and
emblem on the ballot;
c. the State has taken away and misappropriated the Partys right to determine for itself
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the candidate selection process that will produce a nominee who best represents the
Partys political platform;
d. burdened the Partys associational rights by mandating changes to the Partys internal
rules and procedures, at the threat of depriving the Party of its rights if it refuses to
comply, that disadvantage the Party, and that the Party has rejected and that conflict
with the rules the Party has determined for itself, as set forth in its Constitution and
Bylaws, will produce a nominee who best represents the Partys political platform;
e. burdened the Partys associational rights, and the rights of disassociation, by
imposing upon the Party a nominee who may not necessarily be a Party member and
without guaranteeing that nominee has been selected by a majority of Party members
participating in the primary election;
f. burdened the Partys associational rights and rights to free speech, by taking away the
Partys right to have its nominees commit themselves to the Party Platform as the
standard by which my performance as a candidate and as an officeholder should be
evaluated, and replacing it with a process that requires only that candidates gather
signatures; and
g. burdened the Partys associational rights, and the rights of disassociation, by taking
away the Partys convention system as its preferred way of selecting nominees and
allowing a party to designate candidates in the primary election by convention only if
it agrees to open that primary election, that the State now mandates, to persons
unaffiliated with the Party; and
h. otherwise burdening the Partys rights of association, or depriving it of its rights of
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disassociation, free speech and due process as set forth above.

111.
SB54 authorizes and directs Defendants and other election officials to infringe on
the Partys rights as set forth above without a compelling state interest.
112.
Pursuant to 42 U.S.C. 1983 et. seq., the Party is entitled to a declaratory
judgment declaring these rights, and to an award of reasonable attorneys fees and costs in this
action.
SECOND CAUSE OF ACTION
For Injunctive Relief To Prevent The Deprivation Of Plaintiffs Constitutional Rights
113.

114.
Enforcement of SB54 constitutes an imminent and ongoing threat by the State of
Utah, acting by and through Defendants, to deprive the Party and its members of their civil rights
and constitutionally protected rights.
115.
The Party will suffer irreparable injury if its nominees are selected in the manner
now dictated by the election code, as amended by SB54, where the Party and its members are
deprived of the right
a. to certify and endorse its nominees for elected office;
b. to communicate its endorsement on the general election ballot and to control the use
of its name and emblem on the ballot;
c. to determine for itself the candidate selection process that will produce a nominee
who best represents the Partys political platform;
d. to determine the internal rules and procedures that govern that designated candidate
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selection process, free of the States threat to deprive the Party of its rights if it
refuses to comply with rules that disadvantage the Party and that conflict with the
Partys chosen rules;
e. to require that Partys nominee is a member selected by either a supermajority of
Party delegates or a majority of Party members participating in the primary election;
f. to require that its nominees commit themselves to the Party Platform as the standard
by which [their] performance as a candidate and as an officeholder should be
evaluated;
g. to require that, in order to keep aspects of the Partys convention system, the Party
open up its primary election, that the State now mandates, to persons unaffiliated with
the Party; and
h. to exercise its rights of association, free speech, and disassociation as set forth above.
116.
SB54 deprives the Party, and its members and supporters, of the right to due
process of law as guaranteed by the Fourteenth Amendment to the United States Constitution,
without a compelling state interest.
117.
Pursuant to 28 U.S.C. 2201, the Court should enter a declaratory judgment
stating that SB54 violates the Partys rights and 42 U.S.C. 1983, and should enter a permanent
injunction enjoining enforcement or application of SB54 to the Party.
THIRD CAUSE OF ACTION
Trademark Infringement
118.
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119.
Under 15 U.S.C. 1125(a), a state or its employees acting in their official
capacity, who in connection with any goods or services, uses any word, term, name, symbol, or
any combination thereof, of any false designation of origin, false or misleading description of
fact, or false or misleading representation of fact, which is likely to cause confusion, or to cause
mistake, or to deceive as to the affiliation, connection, or association of such person with another
person, or as to the origin, sponsorship, or approval of his or her goods, services, or commercial
activities by another person, shall be liable in a civil action by any person who believes that he or
she is or is likely to be damaged but such act.
120.
Under 15 U.S.C. 1116, a party may obtain from this court an injunction to
prevent the violation of 15 U.S.C. 1125(a), and under 15 U.S.C. 1117, the prevailing party
may obtain damages, costs and reasonable attorney fees.
121.
As demonstrated above, the State through SB54 has sought to misallocate the
name, title, emblems, and endorsements of the Party, including the Party Mark, and use them in a
way in its administration of the primary and general elections in Utah, and in the actions that it
seeks to prohibit by SB54, that falsely designates the Partys endorsement of nominees, and
which is likely to cause confusion, mistake and deceive Utahns concerning the affiliation,
connection, sponsorship or association with the Party of the person receiving the Partys
nomination under SB54, or contribute to the false designation of the Partys endorsement, in a
way that harms the Party and dilutes its message.
122.
Pursuant to 15 U.S.C. 1116, 1117 & 1125(a), the Party is entitled to a
declaratory judgment, injunction, damages, costs and attorneys fees to remedy the infringement
of SB54 on the Partys rights and enjoin the enforcement or application of SB54.
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PRAYER FOR RELIEF

WHEREFORE, Plaintiff prays the Court for an entry of judgment in its favor and against
Defendants as follows:
1.
A declaratory judgment, pursuant to 28 U.S.C. 2201, declaring SB54 violates
the Partys rights under the First and Fourteenth Amendments to the United States Constitution;
2.
A declaratory judgment, pursuant to 28 U.S.C. 2201, declaring SB54 violates
the Partys rights to control and direct the use of its name, title, emblems, and endorsements, and
prevent the unlawful use of its name, title, emblems, and endorsements in a way that is likely to
cause confusion, mistake and deceive Utahns concerning the affiliation, connection, sponsorship
or association with the Party of the person receiving the Partys nomination under SB54, or
contribute to the false designation of the Partys endorsement under SB54, in a way that harms
the Party and dilutes its message;
3.
A permanent injunction enjoining enforcement and implementation of SB54;
4.
A judgment awarding Plaintiff its damages and costs of suit, including reasonable
attorneys fees under 15 U.S.C. 1117 and 42 U.S.C. 1988; and

5.
Such other and further relief to which Plaintiff may be entitled.
Respectfully submitted this 26th day of November, 2014.

/s/ Marcus R. Mumford
Attorney for Plaintiff
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VERIFICATION
I, James Evans, Chairman of the Utah Republican Party, have read the foregoing
Complaint and declare under penalty of perjury that it is true and correct, and true and correct to
best of my knowledge, information and belief.
Executed on this 26th day of November, 2014.
_______________________________
James Evans
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Exhibit C
Exhibit D

Constitution Party Motion To Intervene in Count My Vote Lawsuit

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Constitution Party Motion To Intervene in Count My Vote Lawsuit

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Case 2:14-cv-00876-DN Document 10 Filed 12/23/14 Page 1 of 124

Collin R. Simonsen (12661)

Plaintiff and Intervenor,

Case No. 2:14-cv-00876 BCW

Case 2:14-cv-00876-DN Document 10 Filed 12/23/14 Page 2 of 124

The Utah Republican Party (Republican Party) filed a complaint (the

Republican Party Complaint) on December 1, 2014. The Republican Party Complaint is

Case 2:14-cv-00876-DN Document 10 Filed 12/23/14 Page 3 of 124

As alleged in the Republican Party Complaint, SB54 impermissibly compels

Constitution Party Complaint 36, 37.

trademark violations. Republican Party Complaint 119-122, Constitution Party Complaint

Despite the numerous similarities, the Constitution Party Complaint includes

Case 2:14-cv-00876-DN Document 10 Filed 12/23/14 Page 4 of 124

contention within the Republican Party. See

Case 2:14-cv-00876-DN Document 10 Filed 12/23/14 Page 5 of 124

In contrast, Governor Herbert believes SB54 to be constitutional and signed the

This Motion is Timely.

The Constitution Partys Claims Share Common Questions of Law

Case 2:14-cv-00876-DN Document 10 Filed 12/23/14 Page 6 of 124

The Constitution Party is Not Adequately Protected by Republican

Case 2:14-cv-00876-DN Document 10 Filed 12/23/14 Page 7 of 124

Case 2:14-cv-00876-DN Document 10 Filed 12/23/14 Page 8 of 124

Case 2:14-cv-00876-DN Document 10 Filed 12/23/14 Page 9 of 124

Manual Notice List

Case 2:14-cv-00876-DN Document 10 Filed 12/23/14 Page 10 of 124

Case 2:14-cv-00876-DN Document 10 Filed 12/23/14 Page 11 of 124

Collin R. Simonsen (12661)

CONSTITUTION PARTY OF UTAH, a

Plaintiff and Intervenor,

Case No. 2:14-cv-00876 BCW

Magistrate Judge Brooke C. Wells

Case 2:14-cv-00876-DN Document 10 Filed 12/23/14 Page 12 of 124

National Constitution Party.a

Complaint is on file with the Court.

Defendant Gary R. Herbert is the Governor of Utah and, in that capacity,

Defendant Spencer J. Cox is the Lieutenant Governor of Utah and, in that

Defendants are responsible for the administration of Utahs election process,

The national location for the Constitution Party is Lancaster, Pennsylvania.

Case 2:14-cv-00876-DN Document 10 Filed 12/23/14 Page 13 of 124

presents a federal question involving constitutionally protected rights. Declaratory and

Venue is proper in this Court pursuant to 28 U.S.C. 1391.

In particular, SB54 requires, with exceptions, that a political party submit to a

Case 2:14-cv-00876-DN Document 10 Filed 12/23/14 Page 14 of 124

The Constitution Party prefers, in its judgment, to utilize the caucus/convention

Conversely, under the scheme in SB54, the winning candidate in a primary

The Constitution Party, in its judgment, believes that the caucus/convention

Case 2:14-cv-00876-DN Document 10 Filed 12/23/14 Page 15 of 124

The candidates understanding of correct constitutional principles;

The candidates ability to articulate these principles;

when appearing as the partys representative in public; and

than personal interests.

Further, endorsed candidates of the Constitution Party of Utah shall:

Be members of the party in good standing, as defined in the party

constitution and Bylaws;

Be evaluated and endorsed by the candidates closest locally approved and

recognized party affiliate, corresponding to that political race.

Furthermore, the Constitution Party bylaws require that:

For State wide office, endorsement shall be by the state convention.

Endorsement and support may be withdrawn by a three-fourths vote of the

Case 2:14-cv-00876-DN Document 10 Filed 12/23/14 Page 16 of 124

http://www.constitutionpartyofutah.com/bylaws/, retrieved December 12, 2014. See

controls the Governors office. http://www.deseretnews.com/article/865616838/Utah-GOP-

Case 2:14-cv-00876-DN Document 10 Filed 12/23/14 Page 17 of 124