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Case 2:14-cv-00876-DN-DBP Document 194 Filed 10/20/15 Page 1 of 38

PARKER DOUGLAS (8924)


Utah Federal Solicitor
DAVID N. WOLF (6688)
THOMAS D. ROBERTS (2773)
KYLE J. KAISER (13924)
Assistant Utah Attorneys General
OFFICE OF THE UTAH ATTORNEY GENERAL
350 North State Street, Ste. 230
P.O. Box 142320
Salt Lake City, Utah 84114-2320
Telephone: (801) 538-9600
Facsimile: (801) 538-1121
E-mail: pdouglas@utah.gov
E-mail: dnwolf@utah.gov
E-mail: thomroberts@utah.gov
E-mail: kkaiser@utah.gov
Counsel for Defendants

IN THE UNITED STATES DISTRICT COURT


FOR THE DISTRICT OF UTAH, CENTRAL DIVISION

UTAH REPUBLICAN PARTY,


Plaintiff,
CONSTITUTION PARTY OF UTAH, a
registered political party of Utah,

DEFENDANTS REPLY TO THE UTAH


REPUBLICAN PARTYS
MEMORANDUM IN OPPOSITON TO
DEFENDANTS MOTION FOR
SUMMARY JUDGMENT

Plaintiff and Intervenor,


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.

Case No. 2:14-cv-00876-DN-DBP


Judge David Nuffer
Magistrate Judge Dustin B. Pead

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TABLE OF CONTENTS
I.

INTRODUCTION ............................................................................................................... v

II.
RESPONSE TO STATEMENT OF ELEMENTS AND UNDISPUTED MATERIAL
FACTS ........................................................................................................................................... vi
A.

Response To Elements ........................................................................................... vi


Element 1: .............................................................................................................. vi
Element 2: ............................................................................................................ viii
Element 3: .............................................................................................................. ix

B.
III.

Response To The Utah Republican Partys Statement Of Facts: .......................... xi

ARGUMENT....................................................................................................................... 1

A. The Courts Rationale For Denying Plaintiffs Preliminary Injunction Motion Is


Applicable. ........................................................................................................................... 1
B. To Survive Summary Judgment Plaintiff Must Raise Facts That Are Concrete, Discrete,
and Well Defined. ................................................................................................................ 2
C. Plaintiffs As Applied Challenge Is Not Supported By Evidence. ...................................... 3
D. The State Can Require Political Parties To Nominate Candidates Through Primary
Elections. ............................................................................................................................. 6
E. The Statute Does Not Burden The Partys Free Speech Rights. ......................................... 8
F. Plaintiffs Equal Protection Claim Should Be Dismissed. .................................................. 9
IV.

CONCLUSION ................................................................................................................. 11

ii

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TABLE OF AUTHORITIES
Cases
American Party of Tex. v. White, 415 U.S. 767 (1974) .................................................................. 6
Anderson v. Celebrezze, 460 U.S. 780 (1983) .................................................................... vii, x, 10
Anderson v. Liberty Lobby, 477 U.S. 242 (1986) ...................................................................... vi, 6
Brunson v. Provident Funding Associates, 608 F. App'x 602 (10th Cir. 2015) ............................. 1
Burdick v. Takushi, 504 U.S. 428 (1992)............................................................................... passim
Celotex Corp. v. Catrett, 477 U.S. 317 (1986) .......................................................................... vi, 6
City of Cleburne, Tex. v. Cleburne Living Ctr., 473 U.S. 432 (1985) ............................................ x
Clingman v. Beaver, 544 U.S. 581 (2005) ...................................................................................... 2
Crawford v. Marion County Election Board, 553 U.S. 181 (2008).............................................. vii
Fulani v. Krivanek, 973 F.2d 1539 (11th Cir. 1992) ................................................................ x, 10
Gonzales v. Carhart, 127 S.Ct. 1610 (2007) ................................................................................ vii
Idaho Republican Party v. Ysursa, 765 F. Supp. 2d 1266 (D. Idaho 2011) ............................... 4, 5
Jones, 530 U.S. ................................................................................................................... 2, 3, 5, 6
Leavitt v. Jane L., 518 U.S. 137 (1996) ....................................................................................... viii
Nevada Comn on Ethics v. Carigan, 131 S.Ct. 2343 (2011).................................................... ix, 8
New York State Bd. of Elections v. Lopez Torres, 552 U.S. 196 (2008) ................................. 6, 7, 8
Niagara Mohawk Power Corp., 169 F.3d 16 (1999) ................................................................... viii
Norman v. Reed, 502 U.S. 279 (1992) .......................................................................................... vii
Obama for Am. v. Husted, 697 F.3d 423 (6th Cir. 2012).......................................................... x, 10
Plyler v. Doe, 457 U.S. 202 (1982)................................................................................................. x
Pullman Co. v. Knott, 235 U.S. 23 (1914) ................................................................................... viii
Republican Party of Ark. v. Faulkner Cnty., Ark., 49 F.3d 1289 (8th Cir. 1995) ..................... x, 10
Rogers v. Corbett, 468 F.3d 188 (3d Cir. 2006) ....................................................................... x, 10
Stewart v. Utah Public Service Comm'n, 885 P.2d 759 (Utah 1994) ..................................... viii, ix
Storer v. Brown, 415 U.S. 724 (1974) ................................................................................... ix, x, 8
Tashjian v. Republican Party of Conn., 479 U.S. 208 (1986) ........................................................ 2
Timmons v. Twin Cities Area New Party, 520 U.S. 351, (1997) ....................................... ix, 2, 8, 9
Washington State Grange v. Washington State Republican Party, 552 U.S. 442 (2008) . vii, viii, 8
Yazoo &M.V.R. Co.v. Jackson Vinegar Co., 226 U.S. 217 (1912) .............................................. viii
Statutes
U.C.A. 20A-9-101(12)(a) ....................................................................................................... xxiv
U.C.A. 20A-9-401(2) ................................................................................................................. xx
Utah Code Ann. 20A-1-103 ........................................................................................................ ix
Utah Code Ann. 20A-9-101(12)(e) .......................................................................................... xxv
Utah Code Ann. 20A-9-401 ...................................................................................................... xiii
Utah Code Ann. 20A-9-401(1) .................................................................................................... 9
Utah Code Ann. 20A-9-406 ..................................................................................................... xxv
Utah Code Ann. 20A-9-101 ..................................................................................................... xii
iii

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Rules
Fed. R. Civ. P 56 ......................................................................................................................... v, 6
Fed. R. Civ. P. 56(e) ................................................................................................................... v, 6
Other Authorities
Wright et. al., 10B Fed. Practice & Procedure Civil 3d 2738 (2008)...................................... viii

iv

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Pursuant to DUCivR 56-1 and Fed. R. Civ. P 56, Defendants Utah Governor R. Gary
Herbert and Utah Lieutenant Governor Spencer J. Cox (Defendants), through counsel, submit
their reply to the Utah Republican Partys (Plaintiff or the Party) memorandum in opposition
to Defendants motion for summary judgment.
I.

INTRODUCTION

Plaintiff contends that it does not need to present evidence in support of its as applied
challenge. Plaintiffs contention is not correct. To succeed on an as applied challenge, Plaintiff
must present evidence demonstrating that the statute, as applied specifically to the Utah
Republican Party, severely burdens the Partys rights.
Plaintiff has not presented any evidence showing that the statute severely burdens its
constitutional rights. Plaintiff has not presented evidence showing that unaffiliated voters will
vote in the Partys primary or sign nomination petition signatures. Evidence of the actual effect
that the unaffiliated voter provision will have on the Party cannot be gathered because Utah has
not conducted an election under the new law. Moreover, the Party has not identified any
statistical studies or polling data from other comparable states that conduct semi-closed primaries
where unaffiliated voters are allowed to participate in primary elections. Thus, the Party has not
presented evidence to show that the statute severely burdens its constitutional rights.
One of the purposes of Fed. R. Civ. P. 56 is to require a party, in advance of trial and
after a motion for summary judgment has been filed, to come forward with some minimal facts
to show that it may not be liable under the claims alleged or subject to the defenses asserted.1 In
the absence of such a minimal showing, a party moving for summary judgment should not be

See Fed. R. Civ. P. 56(e).


v

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required to undergo the expense of preparing for and participating in a trial of the issue
challenged.2 In this case Defendants should not be subject to the expense of preparing for and
participating in a trial because Plaintiff has not identified any evidence demonstrating that the
statute severely burdens its constitutional rights.

II.

RESPONSE TO STATEMENT OF ELEMENTS AND UNDISPUTED MATERIAL


FACTS
A. Response To Elements
Element 1:
Plaintiffs recitation of the legal standard to evaluate the constitutionality of election laws
is consistent with the legal standard identified by Defendants in their motion for summary
judgment. In Burdick v. Takushi, the United States Supreme Court stated:
to subject every voting regulation to strict scrutiny and to require that the
regulation be narrowly tailored to advance a compelling state interest, as
petitioner suggests, would tie the hands of States seeking to assure that
elections are operated equitably and efficiently.3
A court considering a challenge to a state election law must weigh the
character and magnitude of the asserted injury to the rights protected by
the First and Fourteenth Amendments that the plaintiff seeks to vindicate
against the precise interests put forward by the State as justifications for
the burden imposed by its rule, taking into consideration the extent to
which those interests make it necessary to burden the plaintiffs rights.4
Thus, the severity of the burden that the regulation imposes as measured against the
asserted constitutional rights will determine the level of scrutiny the Court applies:

See Anderson v. Liberty Lobby, 477 U.S. 242 (1986); Celotex Corp. v. Catrett, 477 U.S. 317
(1986).
3
Burdick v. Takushi, 504 U.S. 428, 433 (1992).
4
Id. at 434 (internal quotations omitted).
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Under this standard, the rigorousness of our inquiry into the propriety of a
state election law depends upon the extent to which a challenged regulation
burdens the First and Fourteenth Amendment rights. Thus, as we have
recognized when those were subjected to severe restrictions, the regulation
must be narrowly drawn to advance a State interest of compelling
importance. But when a state election law provision imposes only
reasonable, non-discriminatory restrictions upon the First and Fourteenth
Amendment rights of voters, the States important regulatory interests are
generally sufficient to justify the restrictions.5
However, Plaintiffs claim is that the statute is unconstitutional as applied to the Utah
Republican Party.6 Plaintiff fails to identify the legal standard for reviewing an as applied
challenge. An as-applied challenge must raise facts that are discrete and well-defined.7 An
evidentiary record, containing more than mere speculation and conclusory assertions, is
necessary. For example, in Washington State Grange v. Washington State Republican Party, 552
U.S. 442, 454-455 (2008), the Supreme Court emphasized that a statutory provision could not be
struck down on the mere possibility of voter confusion. Rather, there must be an evidentiary
record against which to assess the[] assertions that voters will be confused.8 Mere speculation
was insufficient.9 Similarly, in Crawford v. Marion County Election Board, 553 U.S. 181 at 1622
(2008), the Court cited the lack of concrete evidence in rejecting the constitutional challenge to
Indiana's photo identification statute. Thus, an as-applied challenge can succeed only if it is

Id. (citing and quoting Norman v. Reed, 502 U.S. 279, 289 (1992); Anderson v. Celebrezze, 460
U.S. 780, 788 (1983)).
6
See generally Pls Compl. Doc. 2. Plaintiff has not pled a facial challenge to the statute. See id.
7
See Gonzales v. Carhart, 127 S.Ct. 1610, 1639 (2007).
8
Id. (citations omitted).
9
Id. at 1194.
vii

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supported by more than hypotheticals and imaginary cases.10 Moreover, as with any motion for
summary judgment, a movant cannot prevail on the basis of self-serving and conclusory
allegations.11
Element 2:
Plaintiff lists the Inapplicability Of Severance as an element of the claims at issue.
However, Plaintiffs memorandum in opposition is supposed to be limited to 1) a concise
response to each legal element stated by the moving party . . . ; and 2) [i]f there are additional
legal elements not stated by the moving party that the nonmoving party contends preclude
summary judgment, state each such element along with citation to legal authority that supports
the element (without argument) . . . .12 Plaintiffs inclusion of severance as an element of the
claims at issue on summary judgment is inconsistent with the Federal Rules of Civil Procedure.
Notwithstanding, Defendants respond as follows:
In Leavitt v. Jane L., 518 U.S. 137, 139 (1996), the United States Supreme Court
concluded that: Severability is of course a matter of state law. In Utah, as the Court of Appeals
acknowledged, the matter is determined first and foremost by answering the following question:
Would the legislature have passed the statute without the unconstitutional section?13 A

10

See Washington State Grange, 128 S.Ct. at 1193 (citing Yazoo &M.V.R. Co.v. Jackson
Vinegar Co., 226 U.S. 217, 219 (1912) ([T]his court must deal with the case in hand and not
with imaginary ones); Pullman Co. v. Knott, 235 U.S. 23, 26 (1914) (A statute is not to be
upset upon hypothetical and unreal possibilities, if it would be good upon the facts as they
are.)).
11
See Niagara Mohawk Power Corp., 169 F.3d 16, 18 (1999); Charles A. Wright et. al., 10B
Fed. Practice & Procedure Civil 3d 2738 (2008).
12
DUCivR 56(c).
13
Id. (citing Stewart v. Utah Public Service Comm'n, 885 P.2d 759, 779 (Utah 1994)).
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provision of the [election] part of the Utah Code, to which [SB54s provisions] were added,
answers that question.14 Utah Code Ann. 20A-1-103 provides:
If any provision of . . . S.B. 54 or the application of any provision of . . .
S.B. 54 to any person or circumstance is held invalid by a final decision of
a court . . . the remainder of . . . S.B. 54 shall be given effect without the
invalid provision or application. The provisions of 2014 General Session
S.B. 54 are severable.
Element 3:
Plaintiff lists Invidious Discrimination as an element of the claims at issue. It is
unclear whether Plaintiff is attempting to list elements of a first amendment free speech claim or
a fourteenth amendment equal protection claim. In an abundance of caution, Defendants address
the elements of both claims below:
a. Free Speech Claim:
A political party does not have a First Amendment right to use the ballot itself to send a
particularized message, to its candidate and to the voters, about the nature of its support for the
candidate. Ballots serve primarily to elect candidates, not as forums for political expression.15
The Supreme Court has rejected the notion that the First Amendment confers a right to use
governmental mechanics to convey a message.16 [T]he function of the election process is to
winnow out and finally reject all but the chosen candidates, not to provide a means of giving
vent to short-range political goals, pique, or personal quarrel[s].17 Attributing to elections a

14

Id.
Timmons v. Twin Cities Area New Party, 520 U.S. 351, 363, (1997)(citing Burdick, 504 U.S.
at 438 (KENNEDY, J., dissenting).
16
Nevada Comn on Ethics v. Carigan, 131 S.Ct. 2343, 2351 (2011)(quoting Timmons v. Twin
Cities Area New Party, 520 U.S. 351, 362-63 (1997); Burdick, 504 U.S. at 438)).
17
Burdick, 504 U.S. at 434, 441 (quoting Storer v. Brown, 415 U.S. 724, 730 (1974)).
15

ix

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more generalized expressive function would undermine the ability of States to operate elections
fairly and efficiently.18
b. Equal Protection Claim:
The Equal Protection Clause of the Fourteenth Amendment commands that no State
shall deny to any person within its jurisdiction the equal protection of the laws, which is
essentially a direction that all persons similarly situated should be treated alike.19 The Supreme
Court has developed a three-part test to evaluate election statutes challenged under the First and
Fourteenth Amendments.20 While the Supreme Court has not yet applied this test to ballot-access
challenges on pure equal-protection grounds, the Sixth Circuit Court of appeals has held that the
AndersonBurdick test serves as a single standard for evaluating challenges to voting
restrictions.21 Further, many federal courts of appeals have applied the AndersonBurdick
balancing test to both First Amendment and Equal Protection Clause challenges to ballot-access
laws.22 Accordingly, for purposes of Defendants summary judgment motion, this Court may
apply the AndersonBurdick test as the standard for evaluating Plaintiffs equal protection
challenge to Utahs election laws.

18

Id.
Plyler v. Doe, 457 U.S. 202 (1982) (quoting City of Cleburne, Tex. v. Cleburne Living Ctr.,
473 U.S. 432, 439 (1985)).
20
See Burdick, 504 U.S. 428, 434, 441 (1992); Anderson, 460 U.S. at 78889.
21
Obama for Am. v. Husted, 697 F.3d 423, 430 (6th Cir. 2012).
22
See e.g., Rogers v. Corbett, 468 F.3d 188, 19394 (3d Cir. 2006) (abandoning traditional tiers
of equal-protection scrutiny and applying Anderson ); Republican Party of Ark. v. Faulkner
Cnty., Ark., 49 F.3d 1289, 1293 n. 2 (8th Cir. 1995) (In election cases, equal protection
challenges essentially constitute a branch of the associational rights tree.); Fulani v. Krivanek,
973 F.2d 1539, 1543 (11th Cir. 1992) (applying the Anderson balancing test).
19

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B. Response To The Utah Republican Partys Statement Of Facts:


#
1.

Plaintiffs Purported Facts


The UTGOP is a Utah registered political
party.

Defendants Responses
Undisputed.

2.

The Party is organized by its members to


nominate and support the election of
Republican candidates in partisan races
for elected office and to promote the
principles set forth in its Platform.

Defendants object to Plaintiffs use of a


document that has not been previously
produced. Plaintiff has a duty to
supplement its initial disclosures and failed
to provide Defendants with the 2015
Official Version of the Utah Republican
Party Constitution until October 10, 2015,
when it was attached as an Exhibit to doc.
177. Notwithstanding this objection, and
without waiving the same, Defendants state
that the 2015 Utah Republican Party
Constitution speaks for itself and
specifically identifies as one of its general
purposes that [t]he Party shall . . . perform
Party functions set forth in the election
laws of the State of Utah . . . . Doc. 177-1
Art. I B.

3.

In furtherance of its mission, the Partys


has adopted a platform to express its
common message on the timely political
issues of the day.

Defendants object because the cited pages


of Mr. Evans deposition do not provide
evidentiary support for the allegation
contained in paragraph 3. Notwithstanding
this objection, and without waiving the
same, Defendants do not dispute that the
Utah Republican Party has adopted a
Platform.

4.

The Party is the dominant political party


in Utah in terms of the number of
members and its success in getting its
nominees elected to public office at the
federal, state, and local levels.
The Partys success in getting its
candidates elected is attributable to the
candidate selection process that the Party
has chosen and designated for itself.

Undisputed, but not a relevant or material


fact.

5.

xi

Defendants object to the assertions


contained in paragraph 6 based on lack of
foundation and speculation.

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#
6.

7.

Plaintiffs Purported Facts


Compliance with this process is so
important that the Party recently amended
its constitution to provide that Party
membership is open to any resident of the
State of Utah who registers to vote as a
Republican and complies with the Utah
Republican Party Constitution and Bylaws
.

Defendants Responses
Defendants object to Plaintiffs use of a
document that has not been previously
produced. Plaintiff has a duty to
supplement its initial disclosures and
discovery responses and failed to provide
Defendants with the 2015 Official Version
of the Utah Republican Party Constitution
until October 10, 2015, when it was
attached as an Exhibit to doc. 177.
Defendants further object to Plaintiffs
assertion that compliance with the
candidate selection process was the reason
the Party recently amended its Constitution
on the basis of an absence of evidentiary
support. Notwithstanding this objection,
and without waiving the same, Defendants
do not dispute that the Utah Republican
Party has amended its Constitution to
include the highlighted definition of
membership: Party membership is open
to any resident of the State of Utah who
registers to vote as Republican and
complies with the Utah Republican
Party Constitution and Bylaws, and
membership may be further set forth in
the Utah Republican Party Bylaws.
The State is limited in what it can require Defendants object to the assertions
in terms of how a registered political party contained in paragraph 7 because they are
selects its candidates, mandating, in
legal conclusions as opposed to facts.
relevant party, only that the Party register Defendants further object because the cited
with the State, identify its name and
pages of Mr. Thomas deposition do not
emblem, and adopt a constitution and
provide evidentiary support for the
bylaws that contain a procedure for
assertions contained in paragraph 7.
selecting party candidates at the federal,
Defendants dispute that the assertions
state, and county levels that allows active contained in paragraph 7 are an accurate
participation by party members.
statement of law. The selection process for
candidates seeking a registered political
partys nomination to elected office is set
forth in Utah Code Ann. 20A-9-101 to 809.

xii

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#
8.

Plaintiffs Purported Facts


The Party has designated a candidate
selection process that seeks to ensure that
its members are substantively engaged
and motivated to contribute to the Partys
mission and message, and that its
candidates represent the Platform and are
responsive to the demands of members.

Defendants Responses
The assertions contained in paragraph 8 are
not relevant or material facts. Defendants
also object because the cited pages of Mr.
Gabrielsons and Mr. Lifferths
Declarations do not provide evidentiary
support for the allegations contained in
paragraph 8. Defendants further object
because Mr. Gabrielsons and Mr.
Lifferths Declarations are based on
speculation and lack adequate foundation.

9.

This designated candidate selection


process is the culmination of years of
experience and effort by the Party to
design a process that will reliably produce
candidates that have broad Party support,
represent its Platform and ideals, and have
the ability to win general elections.

Undisputed, but the assertions contained in


paragraph 9 are not relevant or material
facts.

10.

Utah election code prohibits provisions


governing primary elections from being
construed to govern or regulate the
internal procedures of a registered
political party.

Defendants object to the assertions


contained in paragraph 10 because they are
legal conclusions as opposed to facts.
Moreover, Plaintiff has only included part
of Utah Code Ann. 20A-9-401, which
provides, in its entirety:
20A-9-401. Primary elections:
(1) This part shall be construed liberally so
as to ensure full opportunity for persons to
become candidates and for voters to
express their choice.
(2) This part may not be construed to
govern or regulate the internal procedures
of a registered political party.

11.

In this, the State has admitted that it has


no interest or authority in dictating to
the Party how it should choose its
candidates.

xiii

Disputed. Defendants object because the


cited pages of Mr. Thomas deposition do
not provide evidentiary support for the
assertions contained in paragraph 11.

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#
12.

Plaintiffs Purported Facts


The State has admitted that it has no
interest or authority to review the Partys
designated candidate selection process to
determine its compliance with the Utah
election code.

Defendants Responses
Defendants object because the cited pages
of Mr. Thomas deposition do not provide
evidentiary support for the assertions
contained in paragraph 12. Mr. Thomass
testimony on this issue was as follows:
Q. Would you say that the State has an
interest in whether a political party
complies with its constitution and bylaws
or not?
A. There's no statutory review process or
rejection process that the lieutenant
governor has under the statute and it's not
something that we've ever dealt with before
and conducted. So I don't know how we
would react if that were to come across. It
just hasn't been an issue before. Doc. 69-3
133:16-24.
Q. Do you dispute that the Utah Election
Code mandates that a party comply with its
constitution -- a registered political party
comply with its constitution and bylaws?
MR. WOLF: Objection, the Utah Election
Code speaks for itself. You may answer.
THE WITNESS: The statute provides what
the state political parties need to contain
within their constitution and bylaws.
There's no provision that allows or requires
us to review those to ensure that they're in
compliance. Again, it's not an issue that
we've ever had. But seeing that there's no
statutory process or requirement, it's like
many other things in the election code that
are there and there's no necessary
enforcement of it. Doc. 69-3 135:7-21.

xiv

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#
13.

Plaintiffs Purported Facts


The State has admitted that should not
construe that part of Utahs election code
providing for primary elections to govern
or regulate the internal procedures of a
registered political party.

Defendants Responses
Defendants object to the assertions
contained in paragraph 13 as vague and
ambiguous and are unable to provide a
response because there appears to be
language missing.

14.

The candidate selection process that the


Party has designed and implemented
includes caucus meetings, nominating and
organizing conventions, and, where the
party deems necessary, a primary election.
At caucus meetings, members of the
party, organized by neighborhood
precincts, select delegates to the Partys
county and state nominating conventions.
Participation is strictly limited to
registered Party members.
The Partys bylaws mandate that caucus
meetings begin with a prayer, the
recitation of the pledge of allegiance, and
reading of the Partys Platform.
These procedures ensure that the Partys
caucus meetings engage members
substantively in the organizations
common views and principles, and that
those selected as Party delegates
understand and accept the responsibility
and trust their fellow members have
placed in them to vet candidates and play
a leadership role in the Party.

Undisputed, but not a material fact.

At the Partys county and state


nominating conventions, the delegates
selected at neighborhood caucus meetings
vote to nominate the Partys candidates
for partisan federal, state and local elected
offices.

Undisputed, but not a material fact.

15.

16.

17.

18.

xv

Undisputed, but not a material fact.

Undisputed, but not a material fact.

Defendants do not dispute that the Partys


caucus meetings are designed or intended
to engage members substantively in the
organizations common views and
principles, and that those selected as Party
delegates understand and accept
responsibility and trust their fellow
members have placed in them to vet
candidates and play a leadership role in the
party. The evidentiary support for the
assertions contained in paragraph 17 does
not provide foundation for whether the
Partys caucus meetings ensure the stated
purpose.

Case 2:14-cv-00876-DN-DBP Document 194 Filed 10/20/15 Page 16 of 38

#
19.

Plaintiffs Purported Facts


By employing a process where the Partys
candidates are selected by delegates, who
themselves were selected by members at
neighborhood caucuses around the state,
the Party ensures that delegates are able to
engage candidates in substantive
discussions on the issues important to
Party members, vet them more rigorously
than a process without the caucus and
convention processes, and eliminate
candidates that do not represent Party
values and standards.

Defendants Responses
Defendants object to the assertions
contained in paragraph 13 as speculative
and lacking foundation.

20.

Among other things, the Party requires


that candidates seeking its nomination for
elected office sign and submit a
certification that they will comply with
Partys candidate selection rules and
processes.

Defendants object to Plaintiffs use of a


document that has not been previously
produced. Plaintiff has a duty to
supplement its initial disclosures and failed
to provide Defendants with the 2015
Official Version of the Utah Republican
Party Bylaws until October 10, 2015, when
it was attached as an Exhibit to doc. 177.
Notwithstanding this objection, and
without waiving the same, Defendants state
that the 2015 Utah Republican Party
Bylaws speak for themselves.

21.

The Party also requires that candidates


seeking its nomination sign and submit a
disclosure statement regarding the Party
Platform prior to the nominating
convention so that delegates may consider
it in advance of their selection.

Defendants object to Plaintiffs use of a


document that has not been previously
produced. Plaintiff has a duty to
supplement its initial disclosures and failed
to provide Defendants with the 2015
Official Version of the Utah Republican
Party Bylaws until October 10, 2015, when
it was attached as an Exhibit to doc. 177.
Notwithstanding this objection, and
without waiving the same, Defendants state
that the 2015 Utah Republican Party
Bylaws speak for themselves.

xvi

Case 2:14-cv-00876-DN-DBP Document 194 Filed 10/20/15 Page 17 of 38

#
22.

Plaintiffs Purported Facts


In that Platform disclosure statement,
candidates must certify that they are not
a candidate, officer, delegate nor position
holder in any party other than the
Republican party, that they have read
the Platform, and that they either
support and accept it in its entirety,
or with the exceptions specified, as the
standard by which [their] performance as
a candidate and as an officeholder should
be evaluated.

Defendants Responses
Defendants object to Plaintiffs use of a
document that has not been previously
produced. Plaintiff has a duty to
supplement its initial disclosures and failed
to provide Defendants with the 2015
Official Version of the Utah Republican
Party Bylaws until October 10, 2015, when
it was attached as an Exhibit to doc. 177.
Notwithstanding this objection, and
without waiving the same, Defendants state
that the 2015 Utah Republican Party
Bylaws speak for themselves.

23.

The Partys nominating convention


procedures require that delegates be
notified of any candidates failure to
submit a Platform disclosure statement
immediately prior to balloting for that
candidates office.

Defendants object to Plaintiffs use of a


document that has not been previously
produced. Plaintiff has a duty to
supplement its initial disclosures and failed
to provide Defendants with the 2015
Official Version of the Utah Republican
Party Bylaws until October 10, 2015, when
it was attached as an Exhibit to doc. 177.
Notwithstanding this objection, and
without waiving the same, Defendants state
that the 2015 Utah Republican Party
Bylaws speak for themselves.

24.

Except for candidates running unopposed,


delegates to the nominating convention
vote for Party nominees only after
substantive speeches are made either by
the individual candidates or on their
behalf.

Undisputed, but not a material fact.

xvii

Case 2:14-cv-00876-DN-DBP Document 194 Filed 10/20/15 Page 18 of 38

#
25.

Plaintiffs Purported Facts


The Partys constitution and bylaws
dictate the voting procedure for the
nominating conventions, mandating
multiple ballots for each elected office
until the field is winnowed to the top two
candidates, or until a candidate receives
60% or more of the delegates vote.

Defendants Responses
Defendants object to Plaintiffs use of
documents that have not been previously
produced. Plaintiff has a duty to
supplement its initial disclosures and failed
to provide Defendants with the 2015
Official Version of the Utah Republican
Party Constitution or Bylaws until October
10, 2015, when these documents were
attached as Exhibits to doc. 177.
Notwithstanding this objection, and
without waiving the same, Defendants state
that the 2015 Utah Republican Party
Constitution and Bylaws speak for
themselves.

26.

The Partys constitution provides that [a]


candidate for an office that receives 60%
or more of the votes cast at any point in
the balloting process at the state
nominating conventions shall proceed to
the general election.

Defendants object to Plaintiffs use of a


document that has not been previously
produced. Plaintiff has a duty to
supplement its initial disclosures and failed
to provide Defendants with the 2015
Official Version of the Utah Republican
Party Constitution until October 10, 2015,
when it was attached as an Exhibit to doc.
177. Notwithstanding this objection, and
without waiving the same, Defendants state
that the 2015 Utah Republican Party
Constitution speaks for itself.

27.

If no candidate receives 60% or more of


the delegates vote at convention as to a
particular elected office, the Party
nominates the top two candidates to run in
a primary election.

Defendants object to Plaintiffs use of a


document that has not been previously
produced. Plaintiff has a duty to
supplement its initial disclosures and failed
to provide Defendants with the 2015
Official Version of the Utah Republican
Party Constitution until October 10, 2015,
when it was attached as an Exhibit to doc.
177. Notwithstanding this objection, and
without waiving the same, Defendants state
that the 2015 Utah Republican Party
Constitution speaks for itself

xviii

Case 2:14-cv-00876-DN-DBP Document 194 Filed 10/20/15 Page 19 of 38

#
28.

Plaintiffs Purported Facts


Only in this manner does the Party
authorize the certification of its nominee
to the States election officer with its
official mark and endorsement.

Defendants Responses
Defendants object to Plaintiffs use of a
document that has not been previously
produced. Plaintiff has a duty to
supplement its initial disclosures and failed
to provide Defendants with the 2015
Official Version of the Utah Republican
Party Constitution until October 10, 2015,
when it was attached as an Exhibit to doc.
177. Notwithstanding this objection, and
without waiving the same, Defendants state
that the 2015 Utah Republican Party
Constitution speaks for itself.

29.

The Partys Constitution restricts


participation in its primary election to
voters who are registered Republicans.

Defendants object to Plaintiffs use of a


document that has not been previously
produced. Plaintiff has a duty to
supplement its initial disclosures and failed
to provide Defendants with the 2015
Official Version of the Utah Republican
Party Constitution until October 10, 2015,
when it was attached as an Exhibit to doc.
177. Notwithstanding this objection, and
without waiving the same, Defendants state
that the 2015 Utah Republican Party
Constitution speaks for itself.

30.

Only by limiting its primaries to Party


members and limiting its use of a primary
election to those instances where neither
of the top two candidates at the Partys
nominating convention receive more than
60% does the Party ensure that its
nominee will receive a majority of votes
cast by Party members in any primary
election.

The assertions contained in paragraph 30


are not material facts.

31.

Without these procedures, the Party faces


the possibility that a candidate will
become its nominee without receiving
even a majority vote from its members.

The assertions contained in paragraph 31


are not material facts.

xix

Case 2:14-cv-00876-DN-DBP Document 194 Filed 10/20/15 Page 20 of 38

#
32.

Plaintiffs Purported Facts


Defendants Responses
In 2014, the Utah legislature passed SB54, Undisputed.
and the Governor of Utah signed it into
law, amending the Utah election code
extensively.

33.

In 2015, the Utah legislature passed


Undisputed.
SB207, and the Governor of Utah signed
it into law, further amending the Utah
election code. (For ease in reference, this
motion will refer to the amendments to the
Utah election code as set forth in SB54
and SB207 collectively as SB54.)

34.

Under SB54, political parties desiring to


have candidates featured with party
affiliation on the upcoming general
election ballot must file a statement with
the Lieutenant Governor to proceed as an
RPP or QPP.

Undisputed.

35.

If the Party does not choose one of the


two paths, the State takes away its right to
appear on the ballot as a straight ticket
option.

Defendants object to the assertions


contained in paragraph 35 because they are
legal conclusions as opposed to facts.

36.

In this litigation, the Party asserted


initially that SB54 burdened its rights by
requiring amendments to its constitution
and bylaws.

Undisputed, but not a material fact.

37.

The State admitted that SB54 recited


candidate selection procedures that did not
include a prayer, recitation of the pledge
of allegiance, and a review of the Partys
platform.

38.

The State refused to say whether SB54 is


consistent with U.C.A. 20A-9-401(2).

Defendants object because the cited pages


of Mr. Thomas deposition do not provide
evidentiary support for the assertions
contained in paragraph 37. The assertions
contained in paragraph 30 are not material
facts.
Defendants object to the assertions
contained in paragraph 38 because they are
legal conclusions as opposed to facts.

xx

Case 2:14-cv-00876-DN-DBP Document 194 Filed 10/20/15 Page 21 of 38

#
39.

Plaintiffs Purported Facts


The State represented that the Party did
not need to make any changes to its
internal procedures in order to get its
candidates on the general election ballot
with its caucus and convention system,
and need only file a letter with the state
elections office declaring itself a QPP.

Defendants Responses
Defendants object because the cited pages
of Mr. Thomas deposition do not provide
evidentiary support for the assertions
contained in paragraph 39.

40.

SB54 requires that parties who certify


their intent to participate in the upcoming
election as a QPP allow unaffiliated voters
to participate in their primary election,
forcing the Party to open itself up as a
QPP to a population of unaffiliated voters
almost equal to the number of registered
Republicans in the state.

The assertions contained in paragraph 40


include statements about SB54 for which
no response is required. The law speaks
for itself. Defendants do not dispute that
there are approximately 610,000
unaffiliated voters and 640,000 registered
Republican voters in Utah.

xxi

Case 2:14-cv-00876-DN-DBP Document 194 Filed 10/20/15 Page 22 of 38

#
41.

Plaintiffs Purported Facts


The State admitted that this unaffiliated
voter requirement under SB54 would
dilute the Partys impact on elections in
the State, taking no position as to whether
this was a desirable outcome.

Defendants Responses
Disputed. Defendants object because the
cited pages of Mr. Thomas deposition do
not provide evidentiary support for the
assertions contained in paragraph 41. Mr.
Thomas testified as follows:
Q. Is it fair to say that by forcing the party
to open itself -- or open its primary
elections up to unaffiliated voters, the
Republican Party runs the risk of diluting
its impact?
MR. WOLF: Objection, calls for
speculation. Calls for a legal conclusion.
THE WITNESS: I've heard arguments on
both sides of that.
Q. (BY MR. MUMFORD) And what are
those arguments?
A. That, yes, it does dilute it because you
are allowing people who are unaffiliated to
participate in the Republican Party's
primary election. I've also heard that there
are a majority of unaffiliated voters who
tend to be more conservative, perhaps more
identified more with the Republican Party
values, and this might be a way to allow
them to participate in the Republican Party
process.
Q. And does your office take a position
either way on that?
A. We haven't.
Q. Are you going to?
A. No.
Doc. 69-3 at 203:13 to 204:11.

xxii

Case 2:14-cv-00876-DN-DBP Document 194 Filed 10/20/15 Page 23 of 38

#
42.

Plaintiffs Purported Facts


The State has testified that it intends to
enforce the unaffiliated voters provision
of the QPP, regardless of whether the
Partys candidate selection processes limit
participation in its primary elections to
members of the Party only.

Defendants Responses
It is undisputed that the Defendants will
enforce the law. Mr. Thomas testified that:
the statute requires that a political party
provide a statement to us that they would
comply with the procedures of a qualified
party. At that point it is almost up to us as
the lieutenant governor's office and election
officials to ensure that as voters go to the
polls, that the right voters are allowed to
vote the appropriate ballot.
Doc. 69-3 at 180:20-25-181:1.
The statute requires that the political party
provide a statement. It does not indicate
that those changes need to be made in the
bylaws or the constitution. And
furthermore, at that point with the
statement from the party's liaison indicating
that they will be participating as a qualified
party, it would be at that point on the State
who conducts the election to ensure that the
appropriate party members and unaffiliated
voters, and anyone else that they may have
indicated could vote in their primary, to
ensure that just those voters participated in
that election.
Doc. 69-3 at 181:17-25-182:1-3.

43.

The State also admitted that SB54 forces a


Party to accept candidate selection
procedures without any provision to
ensure that the Partys candidate is
selected by a majority, as opposed to a
mere plurality, of Party members.

xxiii

Disputed. Defendants object because the


cited pages of Mr. Thomas deposition do
not provide evidentiary support for the
assertions contained in paragraph 11. Mr.
Thomas did not testify that SB54 forces
the Party to do anything.

Case 2:14-cv-00876-DN-DBP Document 194 Filed 10/20/15 Page 24 of 38

#
44.

Plaintiffs Purported Facts


The States representative admitted that
this plurality issue was a legitimate
concern regarding SB54.

Defendants Responses
Disputed. Plaintiff has quoted a portion of
Mr. Thomas testimony out of context. Mr.
Thomas stated that the plurality issue was a
legitimate concern for the legislature.
Defendants object because the cited pages
of Mr. Thomas deposition do not provide
evidentiary support for the assertions
contained in paragraph 44.

45.

At the hearing held April 10, 2015, on the


Partys motion for a preliminary
injunction, the Court explained to the
Party: If you dont choose [a path as
between QPP and RPP] then I wont
know how SB54 burdens the Partys
rights.

The Courts statements at the hearing held


on April 10, 2015 are a matter public
record to which no response is necessary.

46.

The Court denied the Partys motion for a


preliminary injunction based on its
conclusion that the Partys as applied
challenge to SB54 was not yet ripe,
because it had yet to designate itself as a
QPP, and that the Partys facial challenge
failed because the burdens RPP imposed
were easily resolvable by the party
membership requirements and [t]he
State has nothing to say about whos [a]
member of the a party except to say its
determined in accordance with party
rules.

The Courts order denying the Republican


Partys motion for preliminary injunction
speaks for itself.

47.

Regarding the unaffiliated voter issue, the The Courts statements at the hearing held
court distinguished the States arguments
on April 10, 2015 are a matter public
by pointing out that U.C.A. 20A-9record to which no response is necessary.
101(12)(a) pushes the unaffiliated voter
in, to a QPP, where [t]he voter under
past practice would make the choice to opt
in, and it is the States pushing or
forcing which is questionable
constitutionally.

xxiv

Case 2:14-cv-00876-DN-DBP Document 194 Filed 10/20/15 Page 25 of 38

#
48.

Plaintiffs Purported Facts


Defendants Responses
On or about August 18, 2015, the Party
Undisputed.
sent a letter to the Utah Lieutenant
Governors office designating itself a QPP
in the 2016 election cycle:
Pursuant to Utah Code Ann. 20A-9101(12)(e), the Utah Republican Party
certifies its intent to nominate candidates
in 2016 in accordance with its internal
rules and procedures and Utah Code Ann.
20A-9-406. This is without prejudice to
the positions the party has asserted in the
matter Utah Republican Party v. Herbert,
et al., Case No. 2:14-cv-876 (D. Utah),
challenging the constitutionality of recent
amendments to the Utah Election Code.

49.

The State has admitted SB54 was a grand Disputed. Defendants object because the
compromise.
cited pages of Mr. Thomas deposition do
not provide evidentiary support for the
assertions contained in paragraph 49.
Defendants further object to the assertions
contained in paragraph 49 because they are
not relevant or material facts. (See doc 115,
134.)

50.

The State refused to reveal who the


compromise was between, and of what.

Defendants object to the assertions


contained in paragraph 50 because they are
not relevant or material facts. (See doc 115,
134.)

51.

But the unrebutted record shows Utah


lawmakers were on one side of the
compromise.

Defendants object to the assertions


contained in paragraph 51 because they are
not relevant or material facts. (See doc 115,
134.)

52.

And an organization called Count My


Vote, or CMV, was on the other side.

Defendants object to the assertions


contained in paragraph 52 because they are
not relevant or material facts. (See doc 115,
134.)

xxv

Case 2:14-cv-00876-DN-DBP Document 194 Filed 10/20/15 Page 26 of 38

#
53.

Plaintiffs Purported Facts


The legislative record shows how Utah
lawmakers and CMV targeted the Party
and its rights with SB54.

Defendants Responses
Defendants object to the assertions
contained in paragraph 53 because they are
not relevant or material facts. (See doc 115,
134.)

54.

Lawmakers stated that one of their


purposes in passing SB54 was to compel
the Party to open its primaries, making its
nominees more representative of the
entire State, as opposed to Party members.

Defendants object to the assertions


contained in paragraph 54 because they are
not relevant or material facts. (See doc 115,
134.)

55.

The State has admitted that it has no


interest in voter turnout, that it has no
evidence that voter turnout is indicative of
voter satisfaction, and that it has no
evidence that SB54 will increase voter
turnout.

Disputed. (See doc. 69-3 at 205:6 to 206:6.)

56

In discovery, the State refused to answer


questions regarding the States interest
in SB54.

Defendants object to the assertions


contained in paragraph 56 because they are
not relevant or material facts. (See doc 115,
134.)

57.

In discovery, the State refused to answer


questions regarding the purpose of SB54
as it concerns elections in Utah, including
questions regarding informal meetings
involving Defendants and SB54 in the
2014 legislative session.

Defendants object to the assertions


contained in paragraph 57 because they are
not relevant or material facts. (See doc 115,
134.)

58.

In discovery, the State refused to answer


questions regarding the compromise
that led to SB54, including questions
regarding who was compromising (i.e.,
a compromise between the State and
Count My Vote), and what was being
compromised (i.e., the Partys rights).

Defendants object to the assertions


contained in paragraph 58 because they are
not relevant or material facts. (See doc 115,
134.)

59.

In discovery, the State refused to answer


questions regarding the States
communications with CMV leaders,
including with respect to this lawsuit.

Defendants object to the assertions


contained in paragraph 59 because they are
not relevant or material facts (See doc 115,
134.)

xxvi

Case 2:14-cv-00876-DN-DBP Document 194 Filed 10/20/15 Page 27 of 38

#
60.

Plaintiffs Purported Facts


As SB54 adopted the CMV proposal in its
entirety, the State adopted CMVs
arguments in this case.

Defendants Responses
Defendants object to the assertions
contained in paragraph 60 because they are
not relevant or material facts. (See doc 115,
134.) Defendants further object to the
evidentiary support for assertions contained
in paragraph 60 as hearsay. See Fed. R.
Civ. P. 801, 802.

61.

In discovery, the State also refused to


provide any significant guidance
concerning how one might distinguish a
legitimate election restriction
concerning the time, place, and manner of
an election contest from an
unconstitutional State action.

Disputed. Defendants object because the


cited pages of Mr. Thomas deposition do
not provide evidentiary support for the
assertions contained in paragraph 61.

62.

Finally, the State has refused to provide


any other discovery regarding the purpose
of SB54 or its allegedly compelling state
interests.

Defendants object to the assertions


contained in paragraph 62 because they are
not relevant or material facts (See doc 115,
134.)

63.

The purpose of SB54 was to cripple the


effectiveness of the Partys designated
candidate selection processes and,
ultimately, to destroy the Republican
Party in Utah as we know it.

Defendants object to the assertions


contained in paragraph 63 because they are
not relevant or material facts. (See doc 115,
134.) Defendants further object to the
assertions contained in paragraph 63 based
on lack of foundation and speculation.
Notwithstanding these objections and
without waiving the same, Defendants
dispute the assertions contained in
paragraph 63. The purpose of SB 54 is
identified in the statute (see 20A-9-401)
and Defendants have further identified
interests advanced by the statute. Doc 71 at
45-56.

xxvii

Case 2:14-cv-00876-DN-DBP Document 194 Filed 10/20/15 Page 28 of 38

III.
A.

ARGUMENT

The Courts Rationale For Denying Plaintiffs Preliminary Injunction Motion Is


Applicable.
Plaintiff contends the Courts order denying Plaintiffs motion for preliminary injunction

has no bearing at this stage of the litigation because the Court applies a different standard on
summary judgment. It is axiomatic that this Court must apply the summary judgment standard to
Defendants summary judgment motion. However, Plaintiff is incorrect in its assertion that the
rationale the Court applied at the preliminary injunction hearing does not apply here as well.
Plaintiff cites Brunson v. Provident Funding Associates, 608 F. App'x 602, 607 n.17
(10th Cir. 2015) in support of its position. However, in that case, the 10th Circuit stated:
Brunson also maintains the judge erroneously relied on his prior order
granting Provident's motion to dissolve the preliminary injunction in
deciding to grant summary judgment because the legal standards
governing each are different. We see no error. While the judge applied
the same reasoning to resolve both motions as to the negligent
misrepresentation claim (i.e., failure to show a misrepresentation and
reasonable reliance), he applied the correct legal standard to each.23
Thus, although the Court is not bound by its prior decision, it can adopt the same
reasoning to the questions of law presented in this summary judgment motion. For example, in
denying Plaintiffs motion for preliminary injunction, the Court concluded:
At this stage, however, the Partys as-applied challenge is not ripe. The
Party has not yet decided whether it will become a QPP and, thereby, be
required to allow unaffiliated voters to participate in its primary. No elections
have been conducted under the new law and, thus, no evidence was
presented as to what impact, if any, SB54 will have on the Party. And
because an alternative path exists that is constitutional, a facial challenge to
SB54, even if pled, cannot succeed. While there may be further
development of the record, the Party has not presented evidence to

23

Id. (emphasis added).


1

Case 2:14-cv-00876-DN-DBP Document 194 Filed 10/20/15 Page 29 of 38

demonstrate its constitutional rights of association are severely burdened


and, thus, has not demonstrated it is likely to prevail on the merits.24

The same reasoning applies to Defendants motion for summary judgment, i.e., because
Plaintiff has not presented evidence showing that its rights are severely burdened, the Partys
claims cannot survive summary judgment.
B.

To Survive Summary Judgment Plaintiff Must Raise Facts That Are Concrete,
Discrete, and Well Defined.
Plaintiff contends that because the statute forces qualified political parties to allow

unaffiliated voters to participate in the Partys nomination process, it need not present evidence
that the Partys constitutional rights are severely burdened. Plaintiff is not correct. In support of
its positon, Plaintiff rely on Tashjian v. Republican Party of Conn., 479 U.S. 208 (1986).
Plaintiffs reliance on Tashjian is misplaced. In Clingman v. Beaver, 544 U.S. 581, 591-92
(2005), the Court distinguished Tashjian on these very grounds:
Tashjian is unavailing. As an initial matter, Tashjian applied strict
scrutiny with little discussion of the magnitude of the burdens
imposed by Connecticut's closed primary on parties' and voters'
associational rights. But not every electoral law that burdens
associational rights is subject to strict scrutiny. Instead, as our
cases since Tashjian have clarified, strict scrutiny is appropriate
only if the burden is severe.25
Plaintiffs reliance on California Democratic Party v. Jones, 530 U.S. 567 (2000) is also
misplaced. Plaintiff correctly states the Supreme Court concluded Californias use of a blanket
primary compel[led] the [political partys ] association with unwanted members or voters.26
However, the Court concluded that the blanket primary was a severe burden only after reviewing

24

Doc. 170, p. 31. (emphasis added).


Id. (citing Jones, 530 U.S. at 582; Timmons, 520 U.S., at 358.
26
Doc 176, p. 5. (citing Jones at 577.)
2
25

Case 2:14-cv-00876-DN-DBP Document 194 Filed 10/20/15 Page 30 of 38

evidence demonstrating the effect that blanket primaries had on elections results and candidates
positions in California and other states that employed a similar method of selecting party
nominees. Thus, unlike this case, the Court had the benefit of evidence presented by the parties,
and, relied on that evidence in making its ruling.27
In contrast, Plaintiff has presented no evidence whatsoever to demonstrate that the statute
burdens its constitutional rights. Unlike the plaintiffs in Jones, Plaintiff has not presented any
statistical surveys, polling data, or expert reports showing what impact, if any, the statute
actually has on the Party and Party candidates. Moreover, Plaintiff cannot use the evidence
gathered in the Jones case in support of its position here. Not only is Californias population
significantly different than Utahs, Jones also involved a blanket primary, which is very
different than the semi-closed primary provision at issue in this case.
C.

Plaintiffs As Applied Challenge Is Not Supported By Evidence.


Plaintiff identifies portions of Mark Thomas28 deposition testimony as evidence that

the statute severely burdens the Partys constitutional rights. Plaintiff contends that Mr. Thomas
admitted . . . that SB54 will have the effect of diluting the Partys impact on elections in the
State . . . .29 This is simply not true. Mr. Thomas testified on this issue as follows:
Q. Is it fair to say that by forcing the party to open itself -- or open its
primary elections up to unaffiliated voters, the Republican Party runs the
risk of diluting its impact?
MR. WOLF: Objection, calls for speculation. Calls for a legal conclusion.
THE WITNESS: I've heard arguments on both sides of that.
Q. (BY MR. MUMFORD) And what are those arguments?
27

See id. at 578-580 (summarizing evidence which Court considered in making its
determination.)
28
Mr. Thomas is the Chief Deputy in the Lieutenant Governor's Office, and in that capacity
serves as the Director of Elections for the State of Utah. Doc 69-3:17-20.
29
Doc. 176, p. 29.
3

Case 2:14-cv-00876-DN-DBP Document 194 Filed 10/20/15 Page 31 of 38

A. That, yes, it does dilute it because you are allowing people who are
unaffiliated to participate in the Republican Party's primary election. I've
also heard that there are a majority of unaffiliated voters who tend to be
more conservative, perhaps more identified more with the Republican
Party values, and this might be a way to allow them to participate in the
Republican Party process.
Q. And does your office take a position either way on that?
A. We haven't.
Q. Are you going to?
A. No.30
The truth of the matter is that Plaintiff has not shown that unaffiliated voters will choose
to vote in republican primaries and, if so, in what numbers. Nor has Plaintiff presented evidence
to demonstrate the presence of unaffiliated voters in its primary will change the Partys message
or dilute Party ideology. Evidence of the actual effect that the unaffiliated voter provision will
have on the Party cannot be gathered because Utah has not conducted an election under the new
law. Moreover, Plaintiff has not identified any statistical studies or polling data from other
comparable states that conduct semi-closed primaries where unaffiliated voters are allowed to
participate in primary elections. Accordingly, Plaintiff has not met its burden of demonstrating
the statute severely burdens its constitutional rights.
Plaintiff claims it can borrow the evidence gathered in Idaho Republican Party v. Ysursa,
765 F. Supp. 2d 1266 (D. Idaho 2011) to demonstrate that SB54 severely burdens its
constitutional rights. However, this approach was specifically rejected by the Ysursa court:
The Court could not simply borrow the statistics, opinions, and surveys
from Jones because that case dealt with a blanket primary instead of an
open primary. The Court could not determine what burdens or restrictions,
if any, are placed on the Idaho Republican Party by Idaho's open primary.
In turn, the Court could not weigh the character and magnitude of the

30

Doc 69-3 at 203:13 to 204:11.


4

Case 2:14-cv-00876-DN-DBP Document 194 Filed 10/20/15 Page 32 of 38

Idaho Republican Party's asserted injury against the interests of the State
as justification for any such burden imposed by its statutes.31
Just as Idahos open primary differed from Californias blanket primary, so too does
Utahs law differ from Idahos. Idaho utilized an open primary. In contrast, Utah employs a
semi-closed primary.32 Accordingly, this Court cannot rely on the evidence gathered in Ysursa
because Plaintiff has not presented any evidence that crossover voting existed in [Utah] under
its [semi-closed] primary as it did in [Idaho] under its [open] primary.33 Applying the Idaho
district courts rationale from Ysursa, reveals the following:
Without evidence about crossover voting in [Utah] or other [semi-closed]
primary states, the Court could not determine whether [Utahs semiclosed] primary subjects the [Utah] Republican Party's candidate-selection
process to persons wholly unaffiliated with the party. This, in turn,
prevented the Court from determining whether, and to what extent, the
threat of crossover voting affects the positions of the [Utah] Republican
Party and its candidates.34
The absence of evidence, as identified by the Ysursa court, is also present in this case;
but, to a far greater degree. It is true that in Ysursa the court set the matter for a bench trial to
fully develop the record.35 However, in that case, the parties had designated experts and, thus,
could gather statistical data on the effect that open primaries had on political parties in other
comparable states. Accordingly, the parties were able to present evidence at trial that was
material to the issue before the court. That is not the case here. In this case, Plaintiff has not
designated any experts and is unable to identify any statistical studies or polling data from other

31

Id. (citing Burdick, 504 U.S. 428, 434 (1992)).


In addition, Idahos statute did not mirror Utahs unique signature gathering nomination
process.
33
Id. at 1272.
34
Id. at 1272 (citing Jones, 530 U.S. at 581.)
35
Id.
5
32

Case 2:14-cv-00876-DN-DBP Document 194 Filed 10/20/15 Page 33 of 38

comparable states that conduct semi-closed primaries where unaffiliated voters are allowed to
participate in primary elections. Utahs method of selecting nominees is unique. No other state
utilizes the semi-closed primary in combination with a signature gathering process. Accordingly,
if this case were to go to trial, Plaintiff could not present any evidence showing that allowing
unaffiliated voters to participate in the Partys primary would severely burden the Partys
constitutional rights.
One of the purposes of Fed. R. Civ. P. 56 is to require a party, in advance of trial and
after a motion for summary judgment has been filed, to come forward with some minimal facts
to show that it may not be liable under the claims alleged or subject to the defenses asserted.36 In
the absence of such a minimal showing, a party moving for summary judgment should not be
required to undergo the expense of preparing for and participating in a trial of the issue
challenged.37 In this case, Defendants should not be subject to the expense of preparing for and
participating in a trial because Plaintiff has not identified any evidence demonstrating that the
statute severely burdens its constitutional rights.
D.

The State Can Require Political Parties To Nominate Candidates Through Primary
Elections.
For more than forty years, the Supreme Court has recognized that it is too plain for

argument that a State may require parties to use the primary format for selecting their
nominees, in order to assure that intraparty competition is resolved in a democratic fashion.38

36

See Fed. R. Civ. P. 56(e).


See Anderson, 477 U.S. at 256; Celotex Corp., 477 U.S. at 324.
38
New York State Bd. of Elections v. Lopez Torres, 552 U.S. 196, 203 (2008) (quoting with
approval American Party of Tex. v. White, 415 U.S. 767, 781 (1974)). See also Jones, 530 U.S.
at 572.
6
37

Case 2:14-cv-00876-DN-DBP Document 194 Filed 10/20/15 Page 34 of 38

Consistent with this well-established precedent, the Court denied Plaintiffs motion for
preliminary injunction and concluded that the State can constitutionally require the Party to select
its candidates through a primary election and the State can lawfully certify the Partys candidates
who receive the most votes in the primary election as the candidates to appear on the general election
ballot.39

Undeterred, Plaintiff continues to argue the State cannot require the Party to select its
candidates through a primary election. However, the Partys contention that it has a constitutional
right to select its candidates through the caucus and convention system is contrary to well-established
law. It is true that [a] political party has a First Amendment right to limit its membership as it

wishes, and to choose a candidate-selection process that will in its view produce the nominee
who best represents its political platform.40 As the Supreme Court noted, however, [t]hese
rights are circumscribed . . . when the State gives the party a role in the election process, such as
by giving certain parties the right to have their candidates appear with party endorsement on the
general-election ballot.41
As applied to this case, the State administers the Partys primary election and allows the
Partys symbol to appear on the general election ballot. The State pays for and administers
republican party primaries as well as the general elections to ensure candidates are selected
through an open and democratic process. Where, as here, the State assumes these roles, the
State acquires a legitimate governmental interest in assuring the fairness of the party's
nominating process, enabling it to prescribe what that process must be.42 Accordingly, the State
39

Doc. 170, p. 16.


Lopez Torres, 552 U.S. at 202.
41
Id. at 203.
42
Id.
40

Case 2:14-cv-00876-DN-DBP Document 194 Filed 10/20/15 Page 35 of 38

can constitutionally require the Party to select its candidates through a primary election and the
State can lawfully certify the Partys candidates who receive the most votes in the primary
election as the candidates to appear on the general election ballot.
E.

The Statute Does Not Burden The Partys Free Speech Rights.
Plaintiff contends that placing the Partys symbol on the general election ballot to designate

the Partys candidates violates its rights of free speech. The Party argues that the Party, not the State,
has the exclusive right to use the Partys symbol to endorse its candidates. Plaintiffs position rests on
its erroneous assumption that it has a constitutional right to express its beliefs through a state-funded
ballot. As this Court previously recognized:
However, there is no protected free speech right to communicate the Party's
endorsement on the general election ballot. Ballots serve primarily to elect
candidates, not as forums for political expression.43 The Supreme Court has
expressly rejected the notion that the First Amendment confers a right to use
governmental mechanics to convey a message.44

In Burdick, the Supreme Court held that the ballot is not a forum for political speech but
rather a mechanism to elect candidates:

[T]he function of the election process is to winnow out and finally reject
all but the chosen candidates, not to provide a means of giving vent to
short-range political goals, pique, or personal quarrel[s]. Attributing to
elections a more generalized expressive function would undermine the
ability of States to operate elections fairly and efficiently.45
Plaintiff further contends that the States certification of the candidate who receives the most
votes in the primary election results in the denial of the Partys right to endorse the Partys preferred
candidate. This contention was similarly rejected by this Court:

43

Id. (citing Washington State Grange, 552 U.S. at 453 n. 7 (citing Timmons, 520 U.S. at 363)).
Id. (qutoing Nevada Comn on Ethics v. Carigan, 131 S.Ct. 2343, 2351 (2011) (quoting
Timmons, 520 U.S. at 362-63; Burdick, 504 U.S. at 438.)
45
Burdick, 504 U.S. at 438 (quoting Storer, 415 U.S. at 735).
8
44

Case 2:14-cv-00876-DN-DBP Document 194 Filed 10/20/15 Page 36 of 38

[T]he Party has not shown it is likely that SB54 severely burdens the
Partys free speech rights. The Party may still hold a convention, campaign
for candidates, fundraise, and endorse any candidate the Party chooses to
support. Simply put, the Party remains free to endorse whom it likes, to ally
itself with others, to nominate candidates for office and to spread its message
to all who will listen.46

Plaintiff attempts to avoid the dismissal of its free speech claims by claiming SB54 is
content based legislation because it was allegedly passed for the purpose of dilut[ing] the
Partys effectiveness in getting candidates elected and moderate the allegedly extreme views of
its members.47 However, contrary to Plaintiffs assertions, the stated purpose of the statute is
to ensure full opportunity for persons to become candidates and for voters to express their
choice.48 Moreover, this Court has previously ruled that the purpose or intent of the statute can
be established by governmental proffer.49 Likewise, purported improper motivations of a legislative
body are not a basis on which to strike down an otherwise appropriate piece of legislation.50
Accordingly the Court granted Defendants Motion in Limine Regarding the Purpose and Intent of
S.B. 54, and precluded Plaintiff from elicit[ing] testimony related to the purpose or intent of S.B.
54.51 Plaintiffs renewed attempt to introduce evidence concerning the Legislatures purpose or
intent in passing SB54 is in direct violation of this Courts orders and, thus, should not be considered.

F.

Plaintiffs Equal Protection Claim Should Be Dismissed.


In support of its equal protection claims, Plaintiff points to the impermissible

motivations behind SB54, which include the intent to cripple and destroy the Utah Republican
46

Doc. 170, p. 17 (citing Timmons, 520 U.S. at 361).


Doc. 176, p. 15-16.
48
Utah Code Ann. 20A-9-401(1).
49
The interests advanced by the statute, as proffered by Defendants, include: 1) increasing
candidates access to the ballot for party members; 2) increasing voter participation; 3)
enhancing the democratic character of elections; and 4) reducing fraud and corruption.
50
Doc. 115, p. 3; see also doc. 144.
51
Doc. 115, p.5.
9
47

Case 2:14-cv-00876-DN-DBP Document 194 Filed 10/20/15 Page 37 of 38

Party . . . .52 For the reasons stated above, Plaintiffs allegations concerning the Legislatures
purpose or intent in passing SB54 is in direct violation of this Courts orders and, thus, should not be
considered.

Moreover, [t]he Supreme Court has developed a three-part test to evaluate election
statutes challenged under the First and Fourteenth Amendments.53 While the Supreme Court has
not yet applied this test to ballot-access challenges on pure equal-protection grounds, the Sixth
Circuit Court of Appeals has held that the AndersonBurdick test serves as a single standard for
evaluating challenges to voting restrictions.54 Further, many federal courts of appeals have
applied the AndersonBurdick balancing test to both First Amendment and Equal Protection
Clause challenges to ballot-access laws.55 Accordingly, for purposes of Defendants summary
judgment motion, this Court may apply the AndersonBurdick test as the standard for evaluating
Plaintiffs equal protection challenge to Utahs election laws. Therefore, Plaintiffs challenge to
the statute rises or falls on the Courts determination of whether Plaintiff has presented evidence
to demonstrate the statute severely burdens the partys constitutional rights. Because Plaintiff
has not done so, its equal protection claims fails. Since these issues have been fully presented in
the context of Plaintiffs first amendment claims, they need not be repeated here.

52

Doc. 176, p. 19.


See Burdick, 504 U.S. at 434, 441; Anderson, 460 U.S. at 78889.
54
Obama for Am. v. Husted, 697 F.3d 423, 430 (6th Cir. 2012).
55
See e.g., Rogers v. Corbett, 468 F.3d 188, 19394 (3d Cir.2006) (abandoning traditional tiers
of equal-protection scrutiny and applying Anderson); Republican Party of Ark. v. Faulkner Cnty.,
Ark., 49 F.3d 1289, 1293 n. 2 (8th Cir. 1995) (In election cases, equal protection challenges
essentially constitute a branch of the associational rights tree.); Fulani v. Krivanek, 973 F.2d
1539, 1543 (11th Cir. 1992) (applying the Anderson balancing test).
53

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Case 2:14-cv-00876-DN-DBP Document 194 Filed 10/20/15 Page 38 of 38

IV.

CONCLUSION

For the foregoing reasons, Defendants respectfully requests that the Court grant
Defendants motion for summary judgment.
DATED: October 21, 2015.
OFFICE OF THE UTAH ATTORNEY GENERAL
/s/ David N. Wolf
DAVID N. WOLF
THOMAS D. ROBERTS
KYLE J. KAISER
Assistant Utah Attorneys General
PARKER DOUGLAS
Utah Federal Solicitor
Counsel for Defendants

11