Supreme Court Lets Stand Utah’s Dual Path to Nomination

March 5, 2019 Updated: March 5, 2019

WASHINGTON—The Supreme Court refused this week to intervene in a bitter dispute between the Utah Republican Party and electoral reformers over a state law that allows candidates to bypass the state party convention process and get on the primary election ballot by gathering voter signatures on nominating petitions.

The Supreme Court’s failure to take up the case is a victory for moderate Republicans over more conservative members of the GOP. The old convention system is widely viewed as giving more conservative candidates an edge.

The high court, as is its custom, didn’t provide reasons for denying the party’s petition for certiorari March 4. This means the decision of the 10th Circuit Court of Appeals that upheld the Utah statute, known as SB 54, remains in place and ends a five-year legal battle.

“States must have flexibility to enact reasonable, common-sense regulations designed to provide order and legitimacy to the electoral process,” the circuit court judges ruled.

The law “strikes an appropriate balance between protecting the interests of the state in managing elections and allowing” Republicans “to express their preferences and values in a democratic fashion and to form associations as protected by the First Amendment.”

In 2014, Republican Gov. Gary Herbert signed SB 54 into law, which created a bifurcated party nomination process. Previously, candidates were allowed to represent a party on a primary or general election ballot only if they were selected at a party convention. If no candidate gained a majority at the convention, then the candidates could seek the nomination in a primary election.

The new law, according to Ballotpedia, created an alternative means of nominating party candidates: “Instead of receiving a nomination at a convention, candidates are allowed to collect signatures to get on the ballot under SB 54. If a candidate collects enough signatures, then, at a primary election, voters select between the convention-nominated candidate and the other candidates who qualify through collecting signatures.”

SB 54 is viewed as giving more moderate candidates with less funding a better chance of securing nominations. Supporters of the law say the previous system gave too much power to convention delegates who tend to be significantly more conservative than Republican voters. They point to Herbert and Utah Sen. Mitt Romney (R) who both placed second at party conventions but then won big in the primary and general elections.

Rich McKeown, executive co-chairman of Count My Vote, a group that had wanted to conduct a ballot initiative that would have mandated open primaries and done away with the caucus-convention system entirely, praised the Supreme Court’s move.

“The legal challenge is over and now establishes the dual path as the law of Utah,” McKeown told the Salt Lake Tribune. “The law has proven to be popular and it has accomplished its purpose of increased voter participation.”

The Utah Republican Party Constitutional Defense Committee said the fight to repeal the law will now go back to the state legislature. The law imperils “the rights of assembly and speech of all private expressive associations,” including “political parties, labor unions, private colleges and universities, religious organizations and many others.”

The party argued unsuccessfully in a legal brief that legal precedent was on its side.

“For at least the last half-century, this Court has virtually always stepped in when a government attempts to interfere with a political party’s autonomy … This Court’s willingness to do so reflects … a recognition that ‘[representative] democracy in any populous unit of governance is unimaginable without the ability of citizens to band together in promoting among the electorate candidates who espouse their political views,’ and that party autonomy is essential to citizens’ ability to ‘band together’ for that purpose.”

Several conservative lawmakers filed friend-of-the-court briefs supporting the Utah GOP’s position. Among the filers were Sens. Mike Lee (R-Utah) and Ted Cruz (R-Texas).