Case 2:16-cv-00038-DN Document 82 Filed 04/14/16 Page 1 of 17

Charles A. Stormont (11490)

David P. Billings (11510)
STORMONT BILLINGS, PLLC
525 East 100 South, #275B
Salt Lake City, UT 84102
Tel: 801-810-7049
801-448-7085
Charles@stormontbillings.com
David@stormontbillings.com
Attorneys for Intervenor Utah Democratic Party
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH, CENTRAL DIVISION
UTAH DEMOCRATIC PARTY,
Intervenor,
UTAH REPUBLICAN PARTY,
Plaintiff,
v.
SPENCER J. COX, in his Official Capacity
as Lieutenant Governor of Utah,
Defendant.

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UTAH DEMOCRATIC PARTYS

RESPONSE TO [80] UTAH
REPUBLICAN PARTYS
MEMORANDUM RESPONSE TO
DOCKET ORDER 77

Case No. 2:16-cv-00038-DN

Judge David Nuffer

Pursuant to this Courts April 11, 2016 Order,1 the Utah Democratic Party (UDP), by and
through its counsel, respectfully responds to the memorandum filed by the Utah Republican Party
(URP) as follows:

See Docket No. 77.

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INTRODUCTION
If there was any doubt after URP formally declared to the LG that it would restrict its
candidate-selection procedures to the convention method2 on December 3, 2015, that doubt has
been clearly removed. URP has been asked whether it will comply with the requirements of the
QPP statute as confirmed by the Utah Supreme Courts recent opinion.3 In response, URP clearly
stated that it will NOT comply with the law.4 URP asserts its refusal to follow the law is
permissible because of a claimed Constitutional right. But as set forth below and in other briefings
filed with the Court, no such right actually exists. URPs arguments ignore controlling precedent,
mischaracterize other precedent, and fail upon closer examination. Thus, at the end of the day,
URP stands as a self-declared QPP that does not satisfy the requirements of a QPP. The time has
come for the LG to enforce the Election Code, and should he continue to refuse to do so, he will
further violate UDPs Constitutional rights.
ARGUMENT
I.

THE EITHER OR BOTH PROVISION IS NOT AN UNCONSTITUTIONAL CONDITION.

URP claims section 20A-9-101(12)(d) impermissibly burdens the party. Not so. For the

reasons noted in prior briefings,5 which are summarized here, UDP disagrees with this assertion.
This Court previously held on the First Case that (1) 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;6 (2) SB54 does not prevent the Party from holding neighborhood

Docket No. 75 at 11 (citing Docket No. 74-1).

Docket No. 77.
4
Docket No. 80 at 14.
5
See Docket Nos. 49 at 35- 39; 51 at 21-27.
6
First Case, Docket No 170 at 17.
3

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caucus meetings and conducting those meetings as the Party chooses. Moreover, not all regulation
of a partys internal processes is prohibited or constitutionally questionable;7 and (3) nor is there
any constitutional deficiency in a partys candidate gaining access to the general election ballot
based on a plurality vote from a primary election.8
The Utah Supreme court held that [t]he statute does not require the Republican Party to
seek certification as a qualified political party, and it does not purport to mandate the adoption of
any provisions in its constitution bylaws, rules, or other internal procedures.9 An RPP that
chooses to function as such incurs no obligation under subsection (12)(d). However, if a party
seeks certification as a QPP, it must comply with the statutes requirements. This does not amount
to internal control or regulation of the party by the State.10 URPs argument that the party has the
constitutional right to dictate how its nominees are chosen lacks merit, having been rejected
multiple times by multiple courts. And rightly so.
URP argues that requiring a continuing political party to choose between only accessing
the ballot through signature gathering as an RPP or accessing the ballot by permitting its members
the choice of exclusively gathering signatures is an unconstitutional condition because URP has to
choose between two unconstitutional optionsboth of which require giving up its rights to
determine how a nominee is selected.11 But this argument necessarily presupposes that URP has a
constitutional right to choose the method by which its candidates access the ballot. UDP has been
unable to locate a single instance in which a Court has found that a partys membership
requirements can be used to veto a states otherwise constitutional Election Code.

Id. at 18.
Id. at 20.
9
Utah Republican Party v. Cox, 2016 UT 17, 6, --- P.3d --- (per curiam).
10
Id.
11
See Docket No. 80 at 6-14.
8

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That the Court held the Signature Gathering Provision was constitutionally questionable
standing alone is irrelevant to this analysis because the Court also found it critical that the Signature
Gathering Provision does not stand alone.12 Moreover, the Court previously upheld the RPP path
to access the ballot,13 which mandates that a political partys candidates gather signatures and
participate in a primary.14 Neither the right to associate nor the right to participate in political
activities is absolute.15
For over 40 decades, the U.S. Supreme Court has consistently held that a State may choose
either the convention method or the primary method of ballot access, not the political party or the
candidate. And for over 40 years the high Court has held neither parties nor candidates have
constitutional claims to choosing either method. [T]he State may limit each political party to one
candidate for each office on the ballot and may insist that intraparty competition be settled before
the general election by primary election or by party convention,16 and the State is under no
obligation to choose one nomination methodology over another to ensure candidates have a fair
shot at the primary ballot.17 The procedures [convention and primary] are different but the Equal
Protection Clause does not necessarily forbid the one in preference to the other.18
URPs reliance on Democratic Party v. Wisconsin ex rel. La Follette,19 Cousins v.
Wigoda,20 and Ray v. Blair21 are misplaced. All three involve a political partys national

12

See Docket No. 75 at 31-34

See First Case, Docket No. 170 at 15-17
14
See Utah Code 20A-9-403(3)(b)-(4)(a)(i); id. 20A-9-405.
15
CSC v. Letter Carriers, 413 U.S. 548, 567 (1973) (citing Rosario v. Rockefeller, 410 U. S. 752 (1973); Dunn v.
Blumstein, 405 U. S. 330, 336 (1972); Bullock v. Carter, 405 U. S. 134, 140-141 (1972); Jenness v. Fortson, 403 U.
S. 431 (1971); Williams v. Rhodes, 393 U. S. 23, 30-31 (1968)).
16
Am. Party of Tex. v. White, 415 U.S. 767 U.S, 781 (1974) (citing Storer v. Brown, 415 U.S. 724, 733-36 (1974)).
17
See N.Y. State Bd. of Elections v. Lopez Torres, 415 U.S. 196, 205-06 (2008).
18
White, 415 U.S. at 781-82.
19
450 U.S. 107 (1981).
20
419 U.S. 477 (1975).
21
343 U.S. 214 (1952).
13

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convention to choose its Presidential and Vice Presidential nominees, and the Supreme Courts
holdings rely on the absence of a place for a State role in choosing such nominees,22 unlike the
nomination of candidates for federal, state, and county offices within a state.23 While [a] political
party has a First Amendment right to limit its membership as it wishes, and choose a candidateselection process that will in its view produce the nominee who best represents its political
platform,24 [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.25 Once the State assumes this role, the State
acquires a legitimate governmental interest in assuring the fairness of the partys nominating
process, enabling it to prescribe what that process must be.26 States may, and inevitably must,

enact reasonable regulations of parties, elections, and ballots to reduce election-and

campaign-related disorder.27
URP cites to Langone v. Secretary of the Commonwealth28 and Hopfmann v. Connolly29
for the proposition that URPs rules and procedures trump state law. Neither case support such an

22

See, e.g., La Follette, 450 U.S. at 125 n.31 (Any connection between the process of selecting electors [under U.S.
Const. Art. II, 1, cl. 2] and the means by which political party members in a State associate to elect delegates to
party nominating conventions is so remote and tenuous as to be wholly without constitutional significance.);
Cousins, 419 U.S. at 489-90 (The States themselves have no constitutionally mandated role in the great task of the
selection of Presidential and Vice-Presidential candidates.); Ray, 343 U.S. at 229 (noting more than twenty states
do not print the names of the candidates for electors on the general election ballot. Instead, in one form or another,
they allow a vote for the presidential candidate of the national conventions to be counted as a vote for his partys
nominees for the electoral college.).
23
See, e.g., Washington State Grange v. Washington State Republican Party, 552 U.S. 442, 451 (2008) (The States
possess a broad power to prescribe the Times, Places and Manner of holding Elections for Senators and
Representatives, which power is matched by state control over the election process for state offices. (citations and
internal quotation marks omitted)).
24
N.Y. State Bd. of Elections v. Lopez Torres, 552 U.S. 196, 202 (2008).
25
Id. at 203.
26
Id. (emphasis added).
27
Timmons v. Twin Cities Area New Party, 520 U.S. 351, 358 (1997).
28
446 N.E.2d 43, 388 Mass. 185 (Mass. 1983).
29
769 F.2d 24 (1st Cir. 1985).

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argument. In Langone, Langone gathered the requisite number of signatures required under state
law, but did not garner the support of a sufficient number of delegates (15%) under the rules of the
Massachusetts Democratic Party (MDP), and the Secretary of the Commonwealth refused to place
him on the primary ballot as a result.30 The Massachusetts Supreme Judicial Court determined that
MDPs 15% rule augmented state law, which merely provid[ed] minimum requirements for
primary ballot access but permit[ed] imposition by the party of additional requirements that are
consistent with a primary election system and do not infringe the constitutional rights of candidates
and voters.31 As the First Circuit explained in Hopfmann, the Supreme Judicial Court of
Massachusetts has construed the states statutory ballot access requirements in Langone to
encompass, rather than to exclude, the Democratic Partys 15 percent rule.32
It is true that Utahs ballot access provisions permit URP to require 60% delegate support
to access the ballot via the convention route.33 But the Utah Supreme Court has confirmed that an
RPP that wishes to enjoy the benefits of a QPPincluding holding a nominating convention
must permit its members the choice of either the signature gathering route or the caucus/convention
route, or both.34 URP may not impose additional, conflicting requirements under Utah law if it
wants to provide access to the ballot for its members by convention, unlike the Massachusetts law
at issue in Langone and Hopfmann. Thus, URPs requirement that a candidate comply with its
convention process shows that URP does not comply with SB54s requirements for a QPP. URP
admits as much.35
30

See 446 N.E.2d at 44-45.

Id. at 45-48.
32
769 F.2d at 25.
33
See generally Utah Code 20A-9-407, id. 20A-9-409(2).
34
See First Case, Docket No. 207 at 14 (Because the URP and the CPU are QPPs, they must abide by the
provisions applicable to QPPs under SB54.); Utah Republican Party v. Cox, 2016 UT 17, 6, --- P.3d ---- (if a
party seeks certification as a QPP it must comply with the statutes requirements.).
35
See Docket No. 80 at 11, 14-15.
31

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URP next suggests that its system does not violate the constitutional rights of its members,
citing to the White Primary Cases.36 But that issue is not before the Court, and even if it were,
limiting the choice of candidates to those who have complied with state election law requirements
is the prototypical example of a regulation that, while it affects the right to vote, is eminently
reasonable.37 The Utah Supreme Court and this Court have held that URP may choose to either
be an RPP or a QPP, but if URP wants to hold a nominating convention, it must comply with the
statutory requirements of a QPP,38 including permitting its members to bypass the convention
altogether. This does not place a candidates rights above a partys. Rather, it expands options for
potential candidates, while not purport[ing] to mandate the adoption of any provisions in the
constitution, bylaws, rules, or other internal procedures of URP.39 In other words, it does not
burden URPs rights in any way, and it most certainly does not burden a claimed right that the
Supreme Court has never recognized.
II.

URP HAS NOT COMPLIED WITH THE REQUIREMENTS OF A QPP AND HAS STATED IT
WILL NOT COMPLY WITH THOSE REQUIREMENTS.
URP unequivocally stated it Will NOT Comply with The Requirements of the QPP States

As Confirmed In [The] Opinion, Utah Republican Party, 2016 UT 17, 11 [sic].40 The Utah
Supreme Court held that URP has chosen not to comply with the requirements of the QPP to date.41
In its memorandum, URP has again stated it will not revise its party Constitution and Bylaws to
36

See Docket No. 80 at 11 (citing United States v. Classic, 313 U.S. 299 (1941); Smith v. Allwright, 321 U.S. 649
(1944)).
37
Burdick v. Takushi, 504 U.S. 428, 440, n.10 (1992).
38
See First Case, Docket No. 207 at 14 (Because the URP and the CPU are QPPs, they must abide by the
provisions applicable to QPPs under SB54.); Utah Republican Party v. Cox, 2016 UT 17, 6, --- P.3d ---- (if a
party seeks certification as a QPP it must comply with the statutes requirements.).
39
Cox, 2016 UT 17, 11
40
Docket No. 80 at 14.
41
See Cox, 2016 UT 17, 11 (If the Republican Party chooses to comply with the requirements of the QPP statute
as confirmed in this opinion, the relief sought by the Democratic Party . . . will be moot.). See also id., 10
(quoting URPs counsels statement that URP would have to figure out a way how to change our constitution and
by-laws to conform to the state law).

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bring them into compliance with section 20A-9-101(12)(d)42 as UDP has done.43 UDP agrees that
URPs claims regarding the constitutionality of the Either or Both Provision remain a justiciable
controversy, but URPs failure to comply also highlights that UDPs Complaint is also a justiciable
controversy.44
As recently as January 19, 2016, the LG has stated that he will rely on this certification[
the August 17, 2015 letter], and allow candidates access to the ballot through the
caucus/convention process, unless and until the parry official revokes that certification.45 While
it is undisputed that URP formally declared to the LG that it would restrict its candidate-selection
procedures to the convention method46 on December 3, 2015, the LG has continued to treat URP
as a QPP even though URP does not meet the statutory requirements of a QPP. If there had been
any genuine doubt as to whether URP had officially revoked its August 17, 2015 certification
that it would comply with the statutory requirements of a QPP, URPs latest memorandum puts
those doubts to rest. Therefore, the LG cannot legally refuse to act.47 Yet the LG continues to
permit URP candidates to access the ballot through the caucus/convention process. This ongoing
failure to enforce the law and failure to treat URP differently from UDP given URPs
noncompliance violates UDPs Constitutional rights.
When it comes to political parties, [s]ometimes the grossest discrimination can lie in
treating things that are different as though they were exactly alike[.]48 And limiting the choice
of candidates to those who have complied with state election law requirements is the prototypical

42

See Docket No. 80 at 14-15.

See Docket Nos. 20 at 52; 20-3.
44
Cf. Cox, 2016 UT 17, 11 (If the Republican Party chooses to comply with the requirements of the QPP statute
as confirmed in this opinion, the relief sought by the Democratic Party . . . will be moot.).
45
Docket No. 73 at 3.
46
Docket No. 75 at 11 (citing Docket No. 74-1).
47
State v. Candland, 36 Utah 406, 104 P. 285, 290 (1909).
48
Jenness v. Fortson, 403 U.S. 431, 442 (1971).
43

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example of a regulation that, while it affects the right to vote, is eminently reasonable.49 Thus,
limiting nominating processes to political parties that comply with the Election Codes reasonable
requirements is required under Article I, section 17 of the Utah Constitution and the First and
Fourteenth Amendments to the US. Constitution.50 It is equally clear . . . that [a federal courts]
deference to a states interest in orderly elections must be tempered by the risk that state regulation
will favor some parties and some party factions over others.51 As the Supreme Court noted in a
related context, care must be taken not to confuse the interest of partisan organizations with
governmental interests.52
Thus, although a states interest in orderly elections allows it to impose
reasonable, non-discriminatory restrictions on ballot access, a state may not go to
bat for political parties to assure that they remain ballot-qualified. In other words,
a state has no interest in regulating political parties for the purpose of helping them
win or retain voter support. Political parties are nothing more than voluntary
associations of individuals who band together in pursuit of shared political goals.
A partys survival depends upon its ability to compete in the free marketplace of
political ideas and ideals. The First Amendment limits states to a neutral role in that
competitive process. A state may not interfere with the associational rights of
political parties beyond what is necessary to assure honest and orderly elections.
In short, a states interest is in orderly elections, not orderly parties, and it
may regulate political parties only as an incident to regulating elections.[53]
Given that URP has chosen not to comply with the requirements of a QPP and will not
comply with those requirements, there must be consequences. The LG has shifted his position
already regarding what conduct he will deem sufficient to treat URP as an RPP.54 URPs express
statement that it will not comply with the law as clarified by the Utah Supreme Court leaves no

49

Burdick v. Takushi, 504 U.S. 428, 440, n.10 (1992).

See Anderson v. Cook, 102 Utah 265, 103 P.2d 278, 285 (1942) (per curiam); Jenness, 403 U.S. at 442; accord
Timmons, 520 U.S. at 358 (States may, and inevitably must, enact reasonable regulations of parties, elections, and
ballots to reduce election-and campaign-related disorder.).
51
San Francisco County Central Democratic Comm. v. Eu, 826 F.2d 814, 831 (9th Cir. 1987), affd sub nom. Eu v.
San Francisco County Democratic Central Comm., 489 U.S. 214 (1989).
52
Id. (quoting Elrod v. Burns, 427 U.S. 347, 362 (1976) (plurality)).
53
Id.
54
See Docket No. 75 at 11-12 (citing Docket Nos. 2-2 and 73).
50

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more room to shift. If the LG will still not enforce the requirements of a QPP he will further violate
UDPs Constitutional rights.
III.

URPS CONSTITUTION AND BYLAWS PROHIBIT SIGNATURE GATHERING CONTRARY TO

THE REQUIREMENTS OF SB54.
In order to be a member of URP, one must be a resident of the State of Utah who registers

to vote as a Republican and complies with the Utah Republican Party Constitution and
Bylaws[.]55 Similarly, a URP member who wishes to become a URP candidate must sign and
submit a certification that they will comply with the rules and processes set forth in the Utah
Republican Party Constitutions and these Bylaws and a disclosure statement relating to the URP
Platform.56 An examination of URPs rules and processes show that URP does not comply with
the requirements set forth by SB54 under the QPP path.
For example, a Republican 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.57 If no candidate receives 60% or more of the delegates vote at convention as
to a particular elected office, the URP nominates the top two candidates to run in a primary
election.58
By contrast, section 409(4) requires [a] qualified political party that nominates one or
more candidates for an elective office under Section 20A-9-407 and has one or more candidates
qualify as a candidate for that office under Section 20A-9-408 shall participate in the primary
election for that office.59 Section 409(4) and URP Constitution Article XII, section 2(I) clearly

55

First Case, Docket No. 177-1 (Constitution) at 2 (Art. I.C).

First Case, Docket No. 177-1 (Bylaws) at 22 ( 8.0(A)).
57
First Case, Docket No. 177-1 (Constitution) at 10 (Art. XII, 2(I)) (emphasis added).
58
Docket No. 75 at 15 (citing First Case, Docket No. 177-1 (Bylaws) at 18 (7.0(D)(3))).
59
Utah Code 20A-9-409(4).
56

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conflict with one another. This is not just UDPs reading of URPs governing documents. URP
has unequivocally stated that state law directly conflicts with the party convention rule60 and
[n]o other method of nominee selection is sanctioned under the Party Constitution or Bylaws.61
While the LG has argued that the failure of URPs governing documents to expressly
prohibit signature gathering somehow qualifies URP as permitting signature gathering, even this
argument shows that URP is not in compliance with SB54s requirements. The LG explains that a
candidate can still pursue the signature gathering path if s/he first pursues the convention path and
fails. Such a candidate, the argument goes, will have complied with the processes set forth in
URPs governing documents, and therefore could still use the signature gathering option because
the LG would place him/her on the ballot if s/he satisfied the signature gathering requirements.62
But a candidate who sought the nomination by signature gathering exclusively could not
comply with the rules and processes set forth in the the URPs governing documents because no
such signature gathering process exists in those documents. Such a person would not qualify as a
member of the URP because they would necessarily have to violate the URPs governing
documents. But compliance with those governing documents is a definitional requirement of URP
membership. Thus, URP does not permit its members to seek its nomination by choosing to seek
the nomination by either or both the convention and the signature process.63 At best, if its
governing documents do not expressly prohibit signature gathering, they only permit it if the
candidate also sought nomination through convention. Either way, the governing documents do
not comply with section 101(12)(d)s requirements of a QPP.

60

Docket No. 80 at 11.

Id. at 16.
62
See generally Docket No. 49 at 30-31.
63
Cox, 2016 UT 17, 4 (quoting Utah Code 20A-9-101(12)(d)).
61

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IV.

ROBERTS RULES OF ORDER CONTAIN THE PROCESS BY WHICH URP MAY REVOKE A
CANDIDATES MEMBERSHIP.
As URP notes in its memorandum,64 URPs Constitution and Bylaws provide that the

current edition of Roberts Rules of Order shall govern all meetings of the Party,65 including the
URPs State Convention.66 And the current edition of Roberts Rules of Order provide for the
revocation of membership: an organization or assembly has the ultimate right to make and
enforce its own rules, and to require that its members refrain from conduct injurious to the
organization or its purposes. No one should be allowed to remain a member if his retention will
do this kind of harm.67 Such proceedings would fall short of a legal trial, with the admission of
hearsay and unsworn testimony.68 URP members who sought nomination by signature gathering,
but who otherwise met the membership definition of URPs Constitution by first attempting to
seek nomination by convention, could thus have their membership revoked since URP remains
committed to its prior statements that such persons will have their membership revoked.69 Anyone
subject to such proceedings would be entitled to basic due process.70
On the other hand, anyone who attempts to seek nomination by signature gathering only,
as explained above, would not qualify for URP membership because s/he would not have complied
with the requirements of URPs governing documents.71 By definition, such a person would not

64

See generally Docket No. 80 at 16-49 (citing and quoting Henry H. Robert, III Daniel H. Honemann and Thomas
J. Balch, Roberts Rules of Order Newly Revised, Da Capo Press (11th ed. 2011) (RONR)).
65
First Case, Docket No. 177-1 (Bylaws) at 23 (11.0); accord Docket No. 80 at 16 (In the URP Constitution and
the Bylaws, [RONR] is designated as the official parliamentary authority to govern procedures of the URP in all
areas not specifically addressed in those two governing documents. (citing Bylaws at 11.0)).
66
See id. at 19 (7.5(C)(1)).
67
Docket No. 80 at 23 (quoting RONR, p. 643, XX. ( 61), ll. 7-11); accord Docket No. 80 at 17 (Beginning on
page 643 of RONR are the procedures for discipline of a member of any society, including the URP.).
68
See RONR, p. 655, XX. ( 63), ll. 24-35.
69
See Docket Nos. 2 at 18-19, 30-31, 37; 41 at 2; 49-1 at 43:14-44:11; 57 at 2-3.
70
See Docket No. 80 at 35-37 (quoting RONR, p. 656, XX. ( 63), ll. 1-6, 19-32; 656, ll. 35 through 659, ll. 8.
71
See Docket No. 80 at 18-19 (citing First Case, Docket No. 177-1 (Constitution) at 2 (Art. I.C)), (Bylaws) 20
( 7.5(I)(1) and (3)), 22 ( 8.0(A)).

12

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be a URP member and could not be its candidate for office.72 No revocation proceedings would be
necessary in such a scenario.73
In any case, URPs memorandum details the procedure by which its wayward members
can be sanctioned and ultimately removed if they fail to comply with their certification that they
will follow their partys rules and requirements as found in URPs Constitution and Bylaws.74
V.

URP MAY HAVE COMMENCED A REVOCATION PROCEEDING.

While URP states that it has not commenced any revocation proceeding against a member

as of April 11, 2016,75 it is important to note a few things. First, this statement was filed two days
after April 11th and still allows for revocation proceedings to have commenced in the interim.
Second, under Roberts Rules of Order, removal proceedings must be private, with only the
summary results publicly known after the fact.76 Third, URP has disciplined its members in the
recent past. The most recent disciplinary actions in accordance with these rules were undertaken
in 2006 and 2010.77
While [a] members act of gathering signatures does not disqualify him or her from also
seeking the partys nomination through the convention process,78 if a member opts to bypass the
convention altogether or ignores the will of the convention delegates by remaining on the primary
ballot if the candidate fails to secure more than 40% of the delegates votes, they will not be
considered by URP to be in compliance with the partys Constitution and Bylaws.

72

See Utah Code 20A-9-201(2)(a)(iii).

See supra Section III.
74
Docket No. 80 at 17-18.
75
Docket No. 80 at 49.
76
See RONR, p. 655, XX. ( 63), ll. 1-23.
77
See Docket No. 80 at 20. See also First Case, Docket No. 69-4 (Dep. Trans. of James Evans) 156:4-157:6 (stating
URP uses Roberts Rules of Order to remove delegates at a County Convention).
78
Docket No. 80 at 49.
73

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Nor does the Constitution prohibit a political party from removing members whose
positions it disagrees with from the ballot. In Duke v. Masssey,79 David Duke, the founder of the
Louisiana chapter of the Knights of Klu Klux Klan, sought the Republican nomination for
president in 1992, but pursuant to Georgia Statute the presidential candidate selection committee
for the Georgia Republican Party (the Committee) deleted Dukes name from the list of potential
[R]epublican presidential candidates.80 Duke sued Georgia Secretary of State Max Cleland and
the chair of the Committee in Federal Court, alleging Cleland and the Committee chair violated
his rights under the First and Fourteenth Amendment to the U.S. Constitution.81 The Court
concluded that Duke does not have a right to associate with an unwilling partner, the Republican
Party. . . . the Committee did not infringe Dukes right of association because the Republican Party
has a right to identify the people who constitute the association and to limit the association to those
people only.82 While Duke had a procedural due process right to have his petition to be placed on
the ballot to be free from unfettered discretion, and an interest in being free from state
discrimination based on the content of his speech, his First and Fourteenth Amendment interests
do not trump the Republican Partys right to identify its membership based on political beliefs
nor the state's interests in protecting the Republican Party's right to define itself.83
Similarly, in LaRouche v. Fowler,84 Lyndon LaRouche again sought the Democratic
Partys nomination for President in 1996 and had allegedly won two delegates to the partys
national convention through votes he had received in primary elections in two states. But

79

Duke v. Massey, 87 F.3d 1226 (11th Cir. 1996).

See id. at 1228-29 (citing O.C.G.A. 21-2-193(a)).
81
See id. at 1229.
82
Id. at 1232 (citations and internal quotation marks omitted).
83
Id. at 1232-33 (internal quotation marks omitted).
84
152 F.2d 974 (D.C. Cir. 1998).
80

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Democratic National Committee (DNC) Chairman Donald Fowler, applying Democratic Party
rules, ruled that LaRouche was not a bona fide Democrat because of his expressed political beliefs,
was not to be treated as a qualified candidate, and that state parties should disregard any votes cast
for him.85 LaRouche sued, alleging the DNC had violated the Voting Rights Act and his rights
under the First and Fourteenth Amendments. 86 On Appeal, the D.C. Circuit held viewpoint
discrimination by a political party . . . . is the sine qua non of a political party that it represent a
particular political viewpoint.87 Unlike a state, which is largely barred from making such
decisions, a political party must make these decisions.88 [E]ven if a political party is a state actor,
the presence of First Amendment interests on both sides of the equation makes inapplicable the
test applied to electoral restrictions where the First Amendment weighs on only one side.89 While
a political party has every right to remove members who fail to meet the partys membership
requirements, this does not give rise to a constitutional right to determine how its nominee is
chosen or to otherwise circumvent state law requirements for access to the ballot.
VI.

THERE IS NO DIFFERENCE BETWEEN URPS FIRST

OTHER THAN THE RELIEF SOUGHT.

AND

SECOND CAUSES

OF

ACTION

URP concedes that [t]he only substantive difference between the two causes of action is
the relief requested.90 Further, URP judicially admits in its own complaint that the Second Cause
of Action is dependent upon the First Cause of Action.91 Thus, should the Court hold that SB54
does not violate URPs constitutional rights by granting the LG summary judgment on URPs
subparagraphs 73(b)-(g), the Court should also deny URPs request for injunctive relief.

85

See id. at 975-77.

See id. .
87
Id. at 995.
88
Id.
89
Id.
90
Docket No. 80 at 50.
91
See Docket No. 2 at 81.
86

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Similarly, with respect to URPs request that the Court declare that the LG has violated 42
U.S.C. 1983,92 [s]ection 1983 itself does not create any substantive rights, but merely provides
relief against those who, acting under color of law, violate federal rights created elsewhere.93
There can be no violation of 42 U.S.C. 1983 absent a constitutional violation because
[s]ection 1983 merely provides a cause of action; the substantive rights are created elsewhere.94
CONCLUSION
The Utah Supreme Court held that [i]f the Republican Party chooses to comply with the
requirements of the QPP statute as confirmed in this opinion, the relief sought by the Democratic
Party . . . will be moot. If the Republican Party chooses otherwise, perhaps by actually ejecting a
member from the party, there may emerge an actual injury, conveying standing to seek relief in an
appropriate forum.95 URP has chosen otherwise and this is an appropriate forum. UDP has
suffered and continues to suffer an actual injury to its Constitutional rights because the LG refuses
to recognize URPs choice.
UDP seeks declaratory and injunctive relief, along with attorneys fees and costs, declaring
that URP is an RPP rather than a QPP and enjoining any further efforts of the LG to treat URP as
a QPP. URP has made its choice. The LG must honor this choice and enforce its consequences.
Anything less undermines the integrity of our Election Code and the Constitutional rights that code
is designed to further. If the LG persists in this course of conduct despite URPs clear statement
that URP will not comply with the Election Code in the face of clear direction from the Utah
Supreme Court, UDP intends to ask the Court for appropriate relief forthwith.

92

See id.
Reynolds v. Sch. Dist. No. 1, Denver, Colo., 69 F.3d 1523, 1536 (10th Cir. 1995).
94
Sanchez v. Hartley, 810 F.3d 750, 759 (10th Cir. 2016).
95
Cox, 2016 UT 17, 11.
93

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DATED this 14th day of April, 2016.

/s/ David P. Billings

CHARLES A. STORMONT
DAVID P. BILLINGS
STORMONT BILLINGS, PLLC
Attorneys for Intervenor Utah Democratic
Party

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