Beruflich Dokumente
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TABLE OF CONTENTS
I.
INTRODUCTION ............................................................................................................... v
II.
RESPONSE TO STATEMENT OF ELEMENTS AND UNDISPUTED MATERIAL
FACTS ........................................................................................................................................... vi
A.
B.
III.
ARGUMENT....................................................................................................................... 1
CONCLUSION ................................................................................................................. 11
ii
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
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
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
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.
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).
vi
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
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)).
viii
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
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
Defendants Responses
Undisputed.
2.
3.
4.
5.
xi
#
6.
7.
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
#
8.
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.
10.
11.
xiii
#
12.
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
#
13.
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.
15.
16.
17.
18.
xv
#
19.
Defendants Responses
Defendants object to the assertions
contained in paragraph 13 as speculative
and lacking foundation.
20.
21.
xvi
#
22.
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.
24.
xvii
#
25.
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.
27.
xviii
#
28.
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.
30.
31.
xix
#
32.
33.
34.
Undisputed.
35.
36.
37.
38.
xx
#
39.
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.
xxi
#
41.
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
#
42.
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.
xxiii
#
44.
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.
46.
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
#
48.
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.
51.
52.
xxv
#
53.
Defendants Responses
Defendants object to the assertions
contained in paragraph 53 because they are
not relevant or material facts. (See doc 115,
134.)
54.
55.
56
57.
58.
59.
xxvi
#
60.
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.
62.
63.
xxvii
III.
A.
ARGUMENT
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
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
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.
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
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
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
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
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
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
[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.
motivations behind SB54, which include the intent to cripple and destroy the Utah Republican
46
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
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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