Utah GOP New Lawsuit

Case 2:16-cv-00038-DN Document 2 Filed 01/15/16 Page 1 of 30
Marcus R. Mumford (12737)

MUMFORD PC
405 South Main Street, Suite 975
Salt Lake City, Utah 84111
Telephone: (801) 428-2000
Email: mrm@mumfordpc.com
Christ Troupis (applying for admission pro hac vice)
Troupis Law Office, P.A.
801 East State Street, Suite 50
Eagle, Idaho 83616
Telephone: (208) 938-5584
Email: ctroupis@troupislaw.com
Attorneys for Plaintiff Utah Republican Party
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH, CENTRAL DIVISION
UTAH REPUBLICAN PARTY,
COMPLAINT
Plaintiff,
v.
Case No. _____________
GARY R. HERBERT, in his Official

Capacity as Governor of Utah, and
SPENCER J. COX, in his Official Capacity
as Lieutenant Governor of Utah,
Defendants.
Plaintiff Utah Republican Party (Party) hereby complains and alleges as follows:
PARTIES AND JURISDICTION
1.
Plaintiff Utah Republican Party is an unincorporated association established under Title
20A of the Utah Code, with its principal place of business in Salt Lake County, Utah.
2.
Defendant Gary R. Herbert is the Governor of Utah and, in that capacity, supervises the
official conduct of all executive and ministerial officers, including those responsible for the
enforcement of the law titled Senate Bill 54 (SB54), enacted by the Utah Legislature and
signed by Governor Gary R. Herbert (collectively, with the Utah Legislature, the State) in
2014, amending the Utah election code.1 In prior litigation regarding SB54, titled Utah
Republican Party v. Herbert, et al., Case No. 2:14-cv-00876 (D. Utah), Herbert asserted certain
legal and factual positions made in statements to the court by State counsel representing
Herbert, and in sworn testimony made by the States representative, Utah Director of Elections
Mark Thomas that the Court and Party relied on in resolving that matter.
3.
Defendant Spencer J. Cox is the Lieutenant Governor of Utah and, in that capacity, also
the chief election officer of Utah,2 empowered with general supervisory authority over all
political parties and elections, and responsible for the enforcement and implementation of SB54,
among other things. In prior litigation regarding SB54, titled Utah Republican Party v. Herbert,
et al., Case No. 2:14-cv-00876 (D. Utah), Cox asserted certain legal and factual positions made
in statements to the court by State counsel representing Herbert, and in sworn testimony made by
Coxs representative, Utah Director of Elections Mark Thomas that the Court and Party relied
on in resolving that matter.
4.
Defendants are responsible for the administration of Utahs election process, including
overseeing all voter registration activities, the activities of political parties, and coordinating
with local, state, and federal officials to ensure compliance with state and federal election
laws, including SB54.3
5.
This case is brought pursuant to the First and Fourteenth Amendments to the United
Utah Code Ann. 67-1-1(1).

Utah Code Ann. 67-1a-2(2)(a).
3
Utah Code Ann. 20A-2-300.6(2)(b).
2
States Constitution, 42 U.S.C. 1983, and other applicable law, seeking declaratory and
injunctive relief.
6.
The Court has federal question jurisdiction pursuant to 28 U.S.C. 1331 and 1343.
Declaratory and injunctive relief are authorized by 28 U.S.C. 2201 and 2202.
7.
Venue is proper pursuant to 28 U.S.C. 1391.

GENERAL ALLEGATIONS
8.
On December 1, 2014, the Party filed the matter titled Utah Republican Party v. Herbert,
et al., Case No. 2:14-cv-00876 (D. Utah) (the First Lawsuit), with this court, the Honorable
David Nuffer presiding.
9.
In the First Lawsuit, among other things, the Party alleged that SB54 infringed and
burdened the Partys constitutional rights, especially the right of the Party to determine for itself
how its nominee standard bearers are selected, and to ensure that those nominees represent its
political platform. The allegations set forth in the First Lawsuit are attached and incorporated
herein by reference.4
10.
In the First Lawsuit, the Party prayed for a declaratory judgment that SB54 was
unconstitutional, and for injunctive relief, to enjoin the enforcement and implementation of
SB54, and prevent the State from infringing on the Partys rights.
11.
On or about January 5, 2015, the Party filed an Amended Motion for a Preliminary
Injunction and asked the district court to stay enforcement and/or implementation of SB54
during the pendency of the First Lawsuit.
12.
In response to the allegations raised by the Party in the First Lawsuit and Amended
See Complaint, First Lawsuit, Doc. 2, filed December 1, 2014, attached hereto as Exhibit 1.
3
Motion for a Preliminary Injunction, the State amended the Utah election code by enacting and
signing into law Senate Bill 207 (SB207), addressing one of the claims raised by the Party in
its complaint that SB54 modified then-existing law to allow the State to impose a candidate on
a registered political party without ensuring that candidate was even a member of the registered
political party.5
13.
In response to the allegations raised by the Party in the First Lawsuit and Amended
Motion for a Preliminary Injunction, the States representative, Utah Director of Elections Mark
Thomas, gave sworn testimony disputing allegations asserted by the Party that SB54 imposed a
burden on its rights, testifying that the State has little, if any, interest or authority to review the
Partys candidate-selection rules or to dictate to the Party how it should select its candidates.6
14.
Based on the testimony of the States representative and the passage of SB207,7 on April
10, 2015, the court in the First Lawsuit heard and denied the Partys Amended Motion for a
Preliminary Injunction on ripeness grounds, explaining, in part, that because the party has not
elected the [Qualified Political Party, or] QPP route were not ripe for an as applied
challenge.8
See id. 68-76, 100, 110; compare Notice of SB207, First Lawsuit, Doc. 66, filed March 31,
2015.
6
See Deposition of Utah Director of Elections Mark Thomas, First Lawsuit, Doc. 69-3, filed
April 1, 2015 (hereinafter Thomas Tr.), at 99:11-103:21, 103:17-104:19, 111:7-112:10,
119:6-124:7, 131:14-17, 132:9-133:24; 135:7-136:5, 145:18-147:8; 148:24-149:23; and 151:21152:25.
7
See Transcript of Hearing, First Lawsuit, Doc. 107, held April 10, 2015 (hereinafter 4/10/2015
Hrg.) at 13:10-4, 124:7-12; Court Order, First Lawsuit, Doc. 170, filed September 24, 2015
(hereinafter Prelim. Inj. Order), at 5-8, 13, 19-20.
8
First Lawsuit, 4/10/2015 Hrg. at 122:22-25. In this, the court concluded that the other route
of a Registered Political Party (or RPP) under SB54 would not impose an unconstitutional
burden and outcome on the Party, but it also rejected the States argument that the QPP route
was constitutionally permissible because SB54 gave the Party a choice: [T]he difference is
4
15.
Based on the positions that the State had taken in the First Lawsuit, the court rejected the
Partys concerns that its nominee may not necessarily be a party member or committed to the
party platform, suggesting that the Party should adjust its membership requirements to
resolve them.9 In particular, the court summarized its understandings of the States position to
assure the Party that [t]he State has nothing to say about whos the member of a party, at least
under this statute, except to say its determined in accordance with party rules.10
16.
In its formal order denying the Partys Amended Motion for a Preliminary Injunction, the
court rejected the Partys claims that SB54 restricted its ability to endorse the candidates of its
choice and to regulate the Partys internal affairs free from State influence.11 In reaching its
conclusions, the court held [s]ignificantly, under SB54, the State does not dictate who is
allowed to be a member of a political party, that state law allows all political parties to define
membership in accordance with party rules, and that SB207 eliminate[d] the Partys concern
that its nominees may not be members of the Republican Party because a candidate may not
file a declaration of candidacy for a political party of which the candidate is not a member,
except to the extent that the political party permits otherwise in the political partys bylaws.12
17.
Significantly, the orders analysis invited the Party to file objections to a candidates
[the QPP route] pushes the unaffiliated voter in. The voter under past practice would make the
choice to opt in. And it is the States pushing or forcing which is questionable constitutionally.
No cases ever upheld in my view this sort of provision when presented directly to the Court. But
at this stage there are alternative paths so a facial challenge, again not pled for, cannot succeed,
and an as applied challenge is not ripe. So there may be further development of the record, but at
this stage there will be no injunction against the enforcement of Senate Bill 54. Id. at 126:14127:8.
9
First Lawsuit, 4/10/2015 Hrg. at 124:7-12.
10
Id.
11
First Lawsuit, Prelim. Inj. Order at 19.
12
Id. at 19-20.
5
declaration of candidacy under Utah Code 20A-9-202(5) as one way to ensure that candidates
comply with its rules.13
18.
Following the April 10, 2015, hearing, the Party acted in reliance on the States position,
as stated by its counsel and representatives in the First Lawsuit and summarized by the court, and
amended its Utah Republican Party Constitution and Utah Republican Party Bylaws to address
the issues raised by SB54 and to preserve its associational rights to control who will be selected
as the Partys nominees for elected office, being identified with the Partys official mark and
endorsement, and how those nominees will be selected. In particular:
a. the Party amended Article I, C of its Constitution to restrict membership to those
who comply with its internal rules: 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 ....;14
b. the Party amended its Bylaws to require that any candidate choosing to run for its
nomination shall sign and submit a certification that they will comply with the rules
and processes set forth in the Utah Republican Party Constitution and these Bylaws
.;15 and
c. the Party amended the specific provisions of the caucus/convention candidate
selection procedure set forth in its Constitution to provide that any 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, nominating
13
Id. at 20 n.79.
2015 Utah Republican Party Constitution (hereinafter Const.) Art. I, C.
15
2015 Utah Republican Party Bylaws (Bylaws), 8.0(A).
14
the top two candidates to run in a primary election only if neither receives 60% or
more of the delegates vote at the convention.16
19.
On August 18, 2015, the Party delivered a letter to the office of Lieutenant Governor to
designate itself a QPP in the 2016 election cycle, certifying its intent to nominate candidates in
2016 in accordance with its internal rules and procedures and Utah Code Ann. 20A-9-406
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.
20.
In response to the States motion for summary judgment in the First Lawsuit, the Party
requested summary judgment in its favor under Rule 56(f) of the Federal Rules of Civil
Procedure, and at a hearing held October 27, 2015, on pending motions of the State, the Party,
and other parties, the court indicated that it was inclined to grant partial summary judgment to
the Party, striking at least one provision of SB54 as unconstitutional, 20A-9-101(12)(a), after
giving the State a reasonable opportunity to respond.17
21.
At the October 27, 2015, hearing, the court inquired into Defendants position regarding
another provision of SB54, 20A-9-101(12)(d), which only required that members of a QPP,
such as the Party, be permitted to seek nomination by either or both of the following methods,
referring to the convention method and signature-gathering methods, and asked Defendants
counsel to tell me what that means.18
16
Const. Art. XII.2.I & 5.A.

See Summary Judgment Ruling, First Lawsuit, Doc. 207, filed November 3, 2015 (hereinafter
Summary Judgment Ruling), at 2, 37-38; Opposition to Motion for Summary Judgment,
First Lawsuit, Doc. 176, filed October 9, 2015, at 3.
18
See Transcript of Hearing, First Lawsuit, Doc. 202, held October 27, 2015 (hereinafter
17
22.
Following the Defendants counsel response, the court clarified: The qualified political
party let me go back to that under 12(d), has to permit the member to do one or both of the
petition method or nomination through the convention method. So if they only permit
nomination by convention, they would be a QPP under 12(d).19 To which Defendants counsel
answered: Yes, later confirming: You can be a QPP by providing either of those methods or
both.20
23.
After this exchange at the October 27 hearing, the court indicated its intent to strike
101(12)(d) as unconstitutional, and asked the parties what, if any, issues remained in the case
ripe for adjudication.21
24.
In reliance on the statements made by Defendants counsel, and other developments since
the First Lawsuit was filed, the Party answered that there were no remaining issues in the case.22
25.
On November 3, 2015, the court issued its order striking 20A-9-101(12)(a) as
unconstitutional, and, based on the statements of the parties at the October 27 hearing, directed
the case be closed.23
26.
On November 23, 2015, the court entered a Declaratory Judgment and Injunction in the
First Lawsuit, declaring that Utah Code 20A-9-101(12)(a) is unconstitutional and enjoining its
10/27/2015 Hrg.), at 34:7-9.

19
Id. at 35:17-21.
20
Id. at 35:23, 36:8-10. Defendants counsel stated that he viewed 101(d) as conflicting with
another provision from SB54, 20A-9-406(3), which he argued, reaffirm[ed] the right of the
individual,20 explaining how he anticipated that would be the next lawsuit. Id. at 35:4-15,
35:24-36:5.
21
Id. at 90:9-12.
22
Id. at 90:17-19; First Lawsuit, Summary Judgment Ruling at 37.
23
First Lawsuit, Summary Judgment Ruling at 29, 33, 38-39.
8
enforcement as applied to the Party.24

27.
The court left the remainder of SB54 intact, finding that the unconstitutional provision
was severable, and noting that Utah Code 20A-9-406(1) replaces the function of Utah Code
20A-9-101(12)(a), as applied to the Utah Republican Party, referring to the provision of the law
that allows a QPP to determine for itself and certify to the Utah Lieutenant Governor who may
vote for the QPPs candidates.25
28.
By leaving the remainder of SB54 intact, and having 9-406(1) replace the function of
9-101(12)(a), the court also restricted those persons who may sign nominating petitions for
candidates seeking the nomination of a QPP by way of signature-gathering to those voters who
are permitted by the QPP to vote in its primary election.26
29.
Accordingly, by its plain language, and as confirmed by Defendants in the First Lawsuit,
SB54 only requires that a QPP permit its members to seek nomination by either or both of two
methods: convention or signature-gathering.27
30.
Relying on the plain language of SB54, as well as statements made by or on behalf of
Defendants in the First Lawsuit, the Party amended its membership requirements and the
candidate-selection rules and procedures set forth in its Constitution and Bylaws, to restrict its
candidate-selection procedures to the convention method.
31.
The Party formally declared this position to the Lieutenant Governors office by letter
dated November 10, 2015.28 In response, by letter dated November 19, 2015, the Lieutenant
24
Declaratory Judgment and Injunction, First Lawsuit, Doc. 215, filed November 23, 2015.
Id. at 3.
26
Compare Utah Code Ann. 20A-9-408(8) and 20A-9-406(1).
27
Utah Code Ann. 20A-9-101(12)(b).
28
See Letter from James Evans, Chairman of the Utah Republican Party, to Lt. Gov. Spencer J.
25
Governor stated his understanding that there was a conflict between the Utah Republican
Partys reading of two sections of the Utah Code enacted in 2014 by SB54 and the reading by my
office of those same sections, namely Utah Code Sections 20A-9-406(3) and 20A-9101(12)(d).29
32.
The Lieutenant Governor stated his intent to overrule and impose his reading of those
provisions enacted by SB54 to force the Party to accept the nomination of candidates by way of
the signature-gathering method: I must, and intend to, allow candidates, in a qualified political
party, the opportunity to choose between the convention system, gathering signatures or both.
Any objection by a qualified political party to reject candidates who gather signatures will not be
sustained by my office.30 That statement of intent is contrary to the legal and factual positions
Defendants took in the First Lawsuit as set forth in statements made by State counsel
representing Defendants and the sworn testimony of their representative that the Court and
Party relied on in resolving that matter.
33.
The Lieutenant Governor further extended his intent that is now contrary to the legal
and factual positions Defendants took in the First Lawsuit and which the Court and Party relied
on in resolving that matter in a in a letter that his office prepared, dated November 20, 2015,
responding to inquiries made by Republican State Senator Todd Weiler.31
Cox, dated November 19, 2015, available at http://elections.utah.gov/Media/Default/

2016%20Election/UTGOP%20Lt%20Gov%20Position%20Letter%20Preliminary%2011.10.201
5.pdf (last checked at the time of filing).
29
See Letter from Lt. Gov. Spencer J. Cox to James Evans, Chairman of the Utah Republican
Party, dated November 19, 2015 (hereinafter 11/19/2015 Cox Letter), at 1, available at
http://elections.utah.gov/Media/Default/2016%20Election/James%20Evans%20letter%2011.19.2
015.pdf (last checked at the time of filing).
30
Id. at 3.
31
See Letter from Utah Director of Elections Mark Thomas, Lieutenant Governors Office, to
10
34.
In that letter, the Lieutenant Governors office was responding to Weilers inquiries
based on his stated intent to seek the Partys nomination in the 2016 election cycle by signaturegathering.
35.
Weiler asked the Lieutenant Governors office if he, as a Republican Party member, has
the choice under current law to seek the Partys nomination by signature-gathering, to which the
Lieutenant Governors office responded: Yes. [T]he individual or member [of the Party] has
the ability to choose which method they will seek the nomination under, regardless of what the
Partys rules or procedures say in that respect.32
36.
By taking that position, which is contrary to the legal and factual positions Defendants
took in the First Lawsuit as set forth in statements made by State counsel representing
Defendants and the sworn testimony of their representative and that the Court and Party relied
on in resolving that matter, Defendants are imposing SB54 in a way that is both contrary to the
plain language of 9-101(12)(b) and (d) and unconstitutionally burdens the Partys rights.
37.
By taking that position, the Lieutenant Governors office is permitting a member seeking
the Partys nomination to violate the its rules and procedures, and to act contrary to the
members certification that he or she will comply with the Partys rules and procedures in
seeking the nomination.
38.
Weiler asked the Lieutenant Governors office, what if my party says I cant collect
signatures? to which the Lieutenant Governors office responded that it would overrule any
Utah State Senator Todd Weiler, dated November 20, 2015 (hereinafter Weiler Letter),
attached hereto as Exhibit 2.
32
Id. at 1.
11
objection the Party might make to candidates who gather signatures.33

39.
40.
41.
Weiler asked if the Lieutenant Governors office would certify him for the Partys
primary even if it was contrary to the Partys rules and procedures (and his certification to
comply with them), to which the Lieutenant Governors office responded, stating that the Party
must allow candidates to collect signatures and that it will not be in compliance [with the law]
if it does not allow a candidate to collect signatures.34
42.
43.
33
34
Id. at 2.
Id. at 3.
12
44.
In response to further questions, the Lieutenant Governors office indicated that it was
considering disqualifying the Party as a QPP (or otherwise) if it did not allow members to seek
its nomination by signature-gathering, in a manner that violated Party rules, and the candidates
own certification required by those rules.35
45.
46.
47.
On December 3, 2015, the Party wrote a letter to the Lieutenant Governor asking him to
reconsider his position, but to date the Lieutenant Governor has not responded or indicated that
he intends to reconsider.
48.
Accordingly, based on the Lieutenant Governors change in position from that asserted in
the First Lawsuit, and how the State intends to enforce SB54 against the Party, including a
35
Id. at 3.
13
possible disqualification as a QPP or otherwise as a Utah registered political party, the Partys
rights are being, and will be, unconstitutional burdened by the unstricken provisions of SB54.
49.
As set forth above, the Lieutenant Governor is now threatening to disqualify the Party as
a QPP if it does not allow candidates to seek its nomination pursuant to SB54s signaturegathering provisions.
50.
As Defendants have stated their intent to enforce SB54 against the Party, it will burden
the rights of the Party and its members in at least the following ways:
Judicial Estoppel
51.
First, the States change in position from those taken by the Defendants, and their
representatives, in the First Lawsuit burdens the Partys rights in how it violates the principles of
judicial estoppel.
52.
As the Supreme Court has held: Where a party assumes a certain position in a legal
proceeding, and succeeds in maintaining that position, he may not thereafter, simply because his
interests have changed, assume a contrary position, especially if it be to the prejudice of the party
who has acquiesced in the position formerly taken by him.36
53.
The actions of Defendants contrary to the positions they took in the First Lawsuit, that the
Party relied on, and that the court relied on in, among other things, rejecting the Partys claims
that SB54 restricted its ability to endorse the candidates of its choice and to regulate the Partys
internal affairs free from State influence.37
Unconstitutional Burden on the Partys Constitutional Rights
54.
36
37
Second, the States interpretation of SB54 to require that a QPP permit members to seek
New Hampshire v. Maine, 532 U.S. 742, 749 (2001).

First Lawsuit, Prelim. Inj. Order at 19-20.
14
its nomination by both methods of convention and signature-gathering burdens the rights of
the Party and its members in a way that is contrary to the plain language of SB54, which only
requires that the Party permit members to seek its nomination by either or both of those
methods. And Defendants are seeking impermissibly to impose its preferred candidate-selection
process on the Party in place of the rules and procedures that the Party has determined for itself
will produce nominees that best reflect the Partys platform and views.
55.
Contrary to the assurances that the court in the First Lawsuit gave the Party in rejecting
some of its claims, Defendants are now dictating to the Party who is, and is not, allowed to be a
member, how the Party defines membership, and that the Party has no say in whether an
individual may seek the Partys nomination in a manner that is contrary to its rules, and contrary
to the certification that the individual must make in choosing to pursue the Partys nomination in
the first place.38
56.
The First and Fourteenth Amendments to the United States Constitution guarantee to the
Party and its members the right to associate in a political party, the right to act and govern
themselves as a political party, the right to vote as a party in Utah elections, the right to define
who belongs to the Party, the right to determine for itself the Partys platform and message, the
right to allocate its name, title, emblems, and endorsements to those candidates it believes will
best represent the Partys political platform, the right to determine for itself the candidate
selection process that will produce the nominee who best represents the Partys political
platform, and to not be deprived of those rights without due process of law. These are core
Constitutional freedoms held individually and collectively by the members of the Utah
38
Compare id. at 19-20.

15
Republican Party, and by the Party itself.

57.
By now taking an interpretation of SB54 that is contrary to the positions taken by the
State in the First Lawsuit, and contrary to the assurances of the court in the First Lawsuit, the
State is seeking to impose on the Party a system of candidate-selection rules and internal
processes that is different from the rules and processes the Party has chosen for itself to ensure
that its nominees for elected office are members in good standing who represent its political
platform. In so doing, the State is violating the rights of the Party and its members to free
association, free speech and due process, and its ability to control its own brand and message,
and its authority over its endorsement, name, and emblems.
Unconstitutional Signature-Gathering Requirements
58.
There is at least one final way in which Defendants actions burdens the rights of the
Party and its members, and it relates to the threshold signature-gathering requirements set forth
in SB54.
59.
As stated above, despite assurances that the Party could limit candidates to the
convention method, less than a month after the October 27 hearing, Defendants reversed course,
asserting in letters dated November 19 and 20 that the Lieutenant Governors office will (1)
overrule any objection to candidates who seek nomination by signature-gathering in violation of
the Partys rules, and (2) potentially disqualify the Party as a QPP if it does not allow members
to seek nomination by signature-gathering, in violation of its rules and the individuals own
certification to the Party, with impunity.
60.
Signature gathering for a QPP under SB54 is governed by Utah Code 20A-9-408,
which requires that candidates seeking the Partys nomination for elected office in any of the
16
following political subdivisions obtain signatures in the following amounts:

a. for a statewide race, 28,000 signatures of registered voters permitted by the QPP
to vote in a primary election;
b. for a congressional district race, 7,000 signatures of registered voters permitted by
the QPP to vote in a primary election;
c. for a state Senate district race, 2,000 signatures of registered voters permitted by
the QPP to vote in a primary election;
d. for a state House district race, 1,000 signatures of registered voters permitted by
the QPP to vote in a primary election; and
e. for a county office race, signatures of 3% of registered voters permitted by the
QPP to vote in a primary election.39
61.
According to the Lieutenant Governors office, there are currently approximately 586,702
registered Republican voters in the State of Utah.

62.
By demanding that the Party must allow candidates to seek its nomination by signature-
gathering under 9-408, under the threat of disqualification by the Lieutenant Governor, SB54
imposes threshold requirements on candidates seeking the Partys nomination by signaturegathering at the state, county, or local levels that exceed the thresholds established by the
Supreme Court.
63.
The United States Supreme Court has only upheld signature-gathering requirements that
were 5% of the designated population, suggesting that anything more than 5% would impose an
unconstitutional burden on the rights of the party and its members under the First and Fourteenth
39
Utah Code Ann. 20A-9-408.

17
Amendments of the U.S. Constitution, and other federal courts have applied these standards to
strike down signature requirements over 5%.40 The Party is challenging the entirety of these
signature requirements as unconstitutional.
64.
In particular, under SB54, and because the Party has certified as a QPP, members seeking
the Partys nomination for elected office in at least two congressional districts, Districts 2 and 4
which according to the Lieutenant Governors records have 139,593 and 123,542 registered
Republican Party members, respectively, face signature-gathering requirements under Utah Code
Ann. 20A-9-408 that exceed the 5% levels that the Supreme Court has indicated are
constitutionally permissible, imposing a severe and unconstitutional burden on the Party and its
members.
65.
The unconstitutional burden of the signature-gathering requirements that Utah Code Ann.
20A-9-408 imposes on the Party and its members are even more onerous, and more blatantly
unconstitutional, as applied to members seeking the Partys nomination for elected office in the
state legislature.
66.
Under SB54, and because the Party has certified as a QPP, members seeking the Partys
nomination for elected office in one of the States twenty-nine State Senate districts, which
according to the Lieutenant Governors records have registered Republican Party members as set
forth below, face signature-gathering requirements under Utah Code Ann. 20A-9-408 that
range between approximately 6% to 31% of all registered Republicans in their respective
districts, exceeding the levels that the Supreme Court has indicated are constitutionally
40
See, e.g., Jenness v. Fortson, 403 U.S. 431, 438 (1971); Storer v. Brown, 415 U.S. 724, 739
(1974); Lee v. Keith, 463 F.3d 763, 772 (7th Cir. 2006).
18
permissible and imposing a severe and unconstitutional burden on the Party and its members.
STATE SENATE
District #
Registered Party Members
Signatures Required
6490
2000
30.82%
8216
2000
24.34%
8397
2000
23.82%
18901
2000
10.58%
9596
2000
20.84%
15624
2000
12.80%
22474
2000
8.90%
16128
2000
12.40%
21523
2000
9.29%
10
24121
2000
8.29%
11
23305
2000
8.58%
12
12025
2000
16.63%
13
26936
2000
7.43%
14
32212
2000
6.21%
15
24186
2000
8.27%
16
21325
2000
9.38%
17
24362
2000
8.21%
18
16024
2000
12.48%
19
18147
2000
11.02%
20
18503
2000
10.81%
19
Percentage
21
19585
2000
10.21%
22
26404
2000
7.57%
23
24122
2000
8.29%
24
26473
2000
7.55%
25
22596
2000
8.85%
26
24255
2000
8.25%
27
20232
2000
9.89%
28
26362
2000
7.59%
29
28178
2000
7.10%
TOTAL
586702
67.
Under SB54, and because the Party has certified as a QPP, members seeking the Partys
nomination for elected office in one of the States seventy-five State House districts, which
according to the Lieutenant Governors records have registered Republican Party members as set
forth below, face signature-gathering requirements under Utah Code Ann. 20A-9-408 that
range between approximately 7% to 57% of all registered Republicans in their respective
districts, exceeding the levels that the Supreme Court has indicated are constitutionally
permissible and imposing a severe and unconstitutional burden on the Party and its members. In
fact, in those districts where the requirements exceed 50% levels, the requirements of SB54 limit
the number of candidates to 1 who can possibly qualify for the Partys primary, because
members may only sign one petition per elected office.
STATE HOUSE OF REPRESENTATIVES
20
District #
Registered Party Members
Signatures Required
10061
1000
9.94%
9835
1000
10.17%
10008
1000
9.99%
6119
1000
16.34%
10137
1000
9.86%
10078
1000
9.92%
8383
1000
11.93%
6102
1000
16.39%
4531
1000
22.07%
10
5003
1000
19.99%
11
7343
1000
13.62%
12
7253
1000
13.79%
13
6526
1000
15.32%
14
5932
1000
16.86%
15
10004
1000
10.00%
16
7064
1000
14.16%
17
10423
1000
9.59%
18
12227
1000
8.18%
19
11075
1000
9.03%
20
8691
1000
11.51%
21
5645
1000
17.71%
22
3868
1000
25.85%
21
Percentage
23
2086
1000
47.94%
24
3648
1000
27.41%
25
2294
1000
43.59%
26
1748
1000
57.21%
27
14004
1000
7.14%
28
5678
1000
17.61%
29
10210
1000
9.79%
30
4177
1000
23.94%
31
2805
1000
35.65%
32
8769
1000
11.40%
33
2897
1000
34.52%
34
4737
1000
21.11%
35
2684
1000
37.26%
36
8442
1000
11.85%
37
7246
1000
13.80%
38
3475
1000
28.78%
39
5163
1000
19.37%
40
4641
1000
21.55%
41
9940
1000
10.06%
42
7284
1000
13.73%
43
5861
1000
17.06%
44
5600
1000
17.86%
45
6599
1000
15.15%
22
46
7587
1000
13.18%
47
5786
1000
17.28%
48
12104
1000
8.26%
49
9222
1000
10.84%
50
11799
1000
8.48%
51
8100
1000
12.35%
52
9222
1000
10.84%
53
9964
1000
10.04%
54
8898
1000
11.24%
55
10089
1000
9.91%
56
10763
1000
9.29%
57
10567
1000
9.46%
58
9255
1000
10.80%
59
9732
1000
10.28%
60
10657
1000
9.38%
61
8799
1000
11.36%
62
10619
1000
9.42%
63
5359
1000
18.66%
64
6957
1000
14.37%
65
10745
1000
9.31%
66
9451
1000
10.58%
67
8615
1000
11.61%
68
8695
1000
11.50%
23
69
6182
1000
16.18%
70
9169
1000
10.91%
71
10513
1000
9.51%
72
9621
1000
10.39%
73
9764
1000
10.24%
74
12138
1000
8.24%
75
10034
1000
9.97%
TOTAL
586702
68.
These requirements exceed any signature-gathering requirement ever allowed by the
United States Supreme Court, and thus unconstitutionally burden the rights of the Party and its
members.
69.
By imposing such high levels of signature-gathering requirements on candidates seeking
the Partys nomination, under the interpretation now threatened by the Lieutenant Governor,
SB54 effectively seeks to force the Party to allow unaffiliated voters to sign petitions for
candidates seeking its nomination signature-gathering, which, in turn, would force the Party to
allow those unaffiliated voters to participate in the Partys primary. That is exactly what the court
ruled the State could not do in the First Lawsuit.
FIRST CAUSE OF ACTION
For Declaratory Relief Establishing The Unconstitutionality of SB54 For Violating The
Partys Rights
70.
Plaintiff incorporates and realleges the preceding paragraphs as though set forth at length
in this cause of action.
24
71.
This claim for relief arises under the First and Fourteenth Amendments to the United
States Constitution, and 42 U.S.C. 1983.

72.
An actual controversy exists between the Party and the State of Utah with regard to the
exercise of constitutionally protected First Amendment associational rights.

73.
The Party is entitled to a declaratory judgment establishing the unconstitutionality of the
SB54 set forth above as applied to the manner in which

a. the State has taken a different position from that taken in the First Lawsuit, that
the Party relied on in terminating prior litigation;
b. the State has taken away and misappropriated the Partys right to certify and
endorse its nominees for elected office;
c. the State has taken away and misappropriated the Partys right to communicate its
endorsement on the general election ballot and to control the use of its name and
emblem on the ballot;
d. the State has taken away and misappropriated the Partys right to determine for
itself the candidate selection process that will produce a nominee who best
represents the Partys political platform;
e. burdened the Partys associational rights by mandating changes to the Partys
internal rules and procedures, at the threat of depriving the Party of its rights if it
refuses to comply, that disadvantage the Party, and that the Party has rejected and
that conflict with the rules the Party has determined for itself, as set forth in its
Constitution and Bylaws, will produce a nominee who best represents the Partys
political platform;
25
f. burdened the Partys associational rights, and the rights of disassociation, by

imposing upon the Party a nominee who may not necessarily be a Party member
and without guaranteeing that nominee has been selected by a majority of Party
members participating in the primary election;
g. burdened the Partys associational rights and rights to free speech, by taking away
the Partys right to have its nominees commit themselves to the Party Platform
as the standard by which my performance as a candidate and as an officeholder
should be evaluated, and replacing it with a process that requires only that
candidates gather signatures;
h. burdened the Partys associational rights, and the rights of disassociation, by
taking away the Partys convention system as its preferred way of selecting
nominees and allowing a party to designate candidates in the primary election by
convention only if it agrees to open that primary election, that the State now
mandates, to persons unaffiliated with the Party;
i. burdened the Partys associational rights and the rights of disassociation, by
imposing on candidates seeking the Partys nomination onerous signature
gathering requirements beyond those ever allowed by the United States Supreme
Court, and thus unconstitutionally burdens the Partys rights;
j. burdened the rights of the Party and its members by imposing on them signaturegathering requirements beyond those ever allowed by law; and
k. otherwise burdening the Partys rights of association, or depriving it of its rights
of disassociation, free speech and due process as set forth above.
26
74.
SB54 authorizes and directs Defendants and other election officials to infringe on the
Partys rights as set forth above without a compelling state interest.

75.
Pursuant to 42 U.S.C. 1983 et. seq., the Party is entitled to a declaratory judgment
declaring these rights, and to an award of reasonable attorneys fees and costs in this action.
SECOND CAUSE OF ACTION
For Injunctive Relief To Prevent The Deprivation Of Plaintiffs Constitutional Rights
76.
Plaintiff incorporates and realleges the preceding paragraphs as though set forth at length
in this cause of action.

77.
Enforcement of SB54 constitutes an imminent and ongoing threat by the State of Utah,
acting by and through Defendants, to deprive the Party and its members of their civil rights and
constitutionally protected rights.
78.
The Party will suffer irreparable injury the State is allowed to take a different position
from that taken in the First Lawsuit, which the Party relied on in terminating prior litigation.
79.
The Party will suffer irreparable injury its nominees are selected in the manner now
dictated by the election code, as amended by SB54, where the Party and its members are
deprived of the right
a. to certify and endorse its nominees for elected office;
b. to communicate its endorsement on the general election ballot and to control the
use of its name and emblem on the ballot;
c. to determine for itself the candidate selection process that will produce a nominee
who best represents the Partys political platform;
d. to determine the internal rules and procedures that govern that designated
27
candidate selection process, free of the States threat to deprive the Party of its
rights if it refuses to comply with rules that disadvantage the Party and that
conflict with the Partys chosen rules;
e. to require that Partys nominee is a member selected by either a supermajority of
Party delegates or a majority of Party members participating in the primary
election;
f. to require that its nominees commit themselves to the Party Platform as the
standard by which [their] performance as a candidate and as an officeholder
should be evaluated;
g. to require that, in order to keep aspects of the Partys convention system, the Party
open up its primary election, that the State now mandates, to persons unaffiliated
with the Party;
h. to require that candidates seeking the Partys nomination gather signatures beyond
requirements ever allowed by the United States Supreme Court, thus
unconstitutionally burdening the Partys rights; and
i. to exercise its rights of association, free speech, and disassociation as set forth
above.
80.
SB54 deprives the Party, and its members and supporters, of the right to due process of
law as guaranteed by the Fourteenth Amendment to the United States Constitution, without a
compelling state interest.
81.
Pursuant to 28 U.S.C. 2201, the Court should enter a declaratory judgment stating that
SB54 violates the Partys rights and 42 U.S.C. 1983, and should enter a permanent injunction
28
enjoining enforcement or application of SB54 to the Party.

PRAYER FOR RELIEF
WHEREFORE, Plaintiff prays the Court for an entry of judgment in its favor and against
Defendants as follows:
1.
A declaratory judgment, pursuant to 28 U.S.C. 2201, declaring that SB54
violates the Partys rights under the First and Fourteenth Amendments to the United States
Constitution, and the Partys rights to control and direct the use of its name, title, emblems, and
endorsements;
2.
A permanent injunction enjoining enforcement and implementation of SB54;
3.
A judgment awarding Plaintiff its damages and costs of suit, including reasonable
attorneys fees under 42 U.S.C. 1988; and

4.
Such other and further relief to which Plaintiff may be entitled.
Respectfully submitted this 15th day of January, 2015.

/s/ Marcus R. Mumford
Attorney for Plaintiff
29
VERIFICATION
I, James Evans, Chairman of the Utah Republican Party, have read the foregoing
Complaint and declare under penalty of perjury that is true and correct, and true and correct to
the best of my knowledge, information and belief.
__________________________________
James Evans
30
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Marcus R. Mumford (12737)

MUMFORD PC
405 South Main Street, Suite 975
Salt Lake City, Utah 84111
Telephone: (801) 428-2000
Email: mrm@mumfordpc.com
Attorney for Plaintiff Utah Republican Party
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH, CENTRAL DIVISION
UTAH REPUBLICAN PARTY,
Plaintiff,
v.
COMPLAINT
Case No. 2:14-cv-00876
GARY R. HERBERT, in his Official

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

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

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

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

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

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

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

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

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

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

a. Similar to the neighborhood caucus meetings, the county and state nominating
conventions are open to the public, but participation is limited to those delegates
selected at the Partys neighborhood caucus meetings to nominate candidates for
partisan elective office and adopt the Party platform.24
b. The Partys Bylaws provide that only Republican candidates who have properly filed
for elected public office as required by Utah election law and who also meet the
requirements of the Utah Republican Party will be considered by the convention.25
c. The Partys Bylaws require that any candidate wishing to run for the Partys
nomination to elected office must sign a disclosure statement regarding the Party
Platform, and submit it to the Partys headquarters at least 30 days prior to the
convention, which the Party makes available to all delegates attending the
convention, so that the Partys delegates may consider in advance a candidates
support for and acceptance of the Platform as the standard by which that candidate
will be evaluated as the holder of public office.26
d. In the Party Platform disclosure statement, the candidate running for the Partys
nomination and endorsement must certify that he or she is not a candidate, officer,
delegate nor position holder in any party other than the Republican party and either:
23
Bylaws 9.0.B.
Party Const. Art. XII.3.A.
25
Bylaws 7.5.I.1.
26
Id. 8.0.A.
24
10
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i. that the candidate has read the Utah Republican Party Platform and
support[s] and accept[s] it as the standard by which my performance as a
candidate and as an officeholder should be evaluated; or
ii. that the candidate has read the Utah Republican Party Platform and, with
exception of provisions from the Platform specifically noted by the candidate,
candidate and as an officeholder should be evaluated.27
e. In the event that any candidate fails to submit a disclosure statement as required, the
Party Chairman must announce this failure to the delegates prior to balloting for that
candidates office, so that the Partys delegates may consider the candidates failure
in that respect in their selection of a nominee.28
f. Except for those situations where a candidate is running unopposed, the Party
Constitution requires that delegates cast votes at the convention to select the Partys
nominee for elected office only after substantive nominating and acceptance speeches
are made to the delegates by the individual candidates or on behalf of the individual
candidates running for the Partys nomination.29
39.
In the event a field of candidates is more than two, for a single elected office, the
Partys constitution provides for the use of multiple ballots until the field is winnowed to the top
two candidates, or until a candidate receives 60% or more of the delegate vote cast for the office
(the Convention Threshold), in which case, that candidate is certified by the Party to the
27
Id. 8.0.A.
Id. 8.0.B.
29
Party Const. Art. XII.2.F.
28
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States election officer to appear on the general election ballot as the Partys endorsed nominee.30
40.
If no candidate receives 60% or more of the delegates vote at convention as to a
single elected office, the Party nominates both candidates to run in a primary election conducted
in accordance with Utah election code.31
41.
Pre-54 Utah code allows the Party to choose[] to use the primary election
process to nominate some or all of its candidates.32

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Id. Art. XII.2.H-.J & Art. XII.5.A-B; Utah Code Ann. 20A-9-403(5)(a).
93
See Utah Code Ann. 20A-8-106, 20A-8-401(2)(c) & 20A-9-403(1)(b); Party Const. Art.
XII.1.A-.B, Art. XII.2.A-.J & Bylaws 7.5.I.1 & 8.0.A.
94
Utah Code Ann. 20A-9-403(1)(a)-(c), -403(2)(a) & -403(5)(a), as amended.
92
32
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101.
Sixth, it takes away the Partys right to have its nominees commit themselves to
the Party Platform as the standard by which my performance as a candidate and as an

officeholder should be evaluated, and replaces it with a process that requires only that
candidates gather signatures.
Partys political platform, and the Party required that candidates for its nominations
make a certified disclosure to the Party that they have read the Utah Republican
Party Platform and support and accept that Platform as the standard by which
my performance as a candidate and as an officeholder should be evaluated, with any
exceptions notated,95
b. as amended by SB54, the election code now dictates that the candidates for the
Partys nomination need only complete and file nomination petitions to qualify for the
primary ballot, and that only the candidate who receives the highest number of votes
in the primary may appear on the ballot with the Partys endorsement.96
102.
Seventh, it burdens the Partys associational rights, and the rights of
disassociation, by taking away the Partys convention system as its preferred way of selecting
nominees and allowing a party to designate candidates in the primary election by convention
only if it agrees to open that primary election, that the State now mandates, to persons
unaffiliated with the Party.
95
See id. 20A-8-106, 20A-8-401(2)(c) & 20A-9-403(1)(b); Party Const. Art. XII.1.A-.B, Art.
XII.2.A-.J & Bylaws 7.5.I.1 & 8.0.A.
96
Utah Code Ann. 20A-9-403(3)(a) & -403(5)(a), as amended.
33
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election process to nominate some or all of its candidates, which as set forth above,
the Party utilized only where a candidate was unable to get more than 60% at the
nominating convention,97
b. as amended by SB54, the election code only allows the Party to utilize a convention
for the purpose of designating candidates for the primary election ballot, and only if
the Party adopts a new classification, where it changes its rules and procedures to:
i. allow unaffiliated voters to participate in the Partys primary election;
ii. allow delegates the right to vote remotely in the Partys convention or a
procedure for designating alternate delegate;
iii. delay its convention until after April; and
iv. allow candidates to circumvent the convention and qualify for the Partys
primary election ballot also through a petition process.98
c. In other words, the election code as amended by SB54 would only allow the Party to
retain its convention system if it agreed to open itself up to a process that allows
unaffiliated persons to vote in the Partys primary and does not require that the
winning candidate be selected by a majority of those participating in the Partys
97
See Utah Code Ann. 20A-8-106, 20A-8-401(2)(c) & 20A-9-403(1)(b); Party Const. Art.
XII.1.A-.B, Art. XII.2.A-.J & Bylaws 7.5.I.1 & 8.0.A.
98
Utah Code Ann. 20A-9-101(12), as amended, & -9-409, as enacted.
34
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primary.99
103.
Eighth, SB54 burdens the Partys rights of association, free speech and due
process by, among other things, opening the Party up to unknown means of manipulating the
process by which its nominee is selected, as compared to the proven candidate selection process
it selected for itself; not providing adequate measures to ensure that its candidate selection
process is not diluted or manipulated by persons not affiliated with the Party; imposing
restrictions beyond those chosen by the Party in how it is defined or governed; undermining the
secrecy of the ballot in how persons signing nominating petitions must disclose their name and
addresses and cannot remove that information; having as its intent discrimination based on
viewpoint; requiring that candidates for the Partys nomination modify their message as a result
of the law; discriminating against the Party in the threshold it requires; setting a time earlier than
the Party designated for itself to start the candidate selection process.
104.
In summary, SB54 violates the Partys constitutional right to free association and
infringes on its rights to free speech and due process, its ability to control its own brand and
message, and its authority over its endorsement, name, and emblem, by substituting its judgment
for the judgment of the Party in how it selects nominees who best represents its political
platform, by threatening to deprive the Party of its rights and recognition as a registered political
party in the state unless it complies with the States mandates, which limit those rights.
105.
If the State is permitted to enforce SB54, contrary to the rights of the Party, the
conduct of primary and general elections in the State will be unconstitutional, result in legal
challenges, creating substantial risk that the results would be invalidated, and requiring that the
99
Id.
35
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State would be forced to conduct additional primary elections and general elections at great
expense. The costs, delays, and uncertainties in the political process engendered by the
enforcement of SB54 events will irreparably injury the Party, its members and all other voters in
the State.
106.
Voiding SB54 by court order is the only means to fairly and adequately protect
the Partys and its members constitutional rights.

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

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

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

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

a. the State has taken away and misappropriated the Partys right to certify and endorse
its nominees for elected office;
b. the State has taken away and misappropriated the Partys right to communicate its
endorsement on the general election ballot and to control the use of its name and
emblem on the ballot;
c. the State has taken away and misappropriated the Partys right to determine for itself
36
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the candidate selection process that will produce a nominee who best represents the
Partys political platform;
d. burdened the Partys associational rights by mandating changes to the Partys internal
rules and procedures, at the threat of depriving the Party of its rights if it refuses to
comply, that disadvantage the Party, and that the Party has rejected and that conflict
with the rules the Party has determined for itself, as set forth in its Constitution and
Bylaws, will produce a nominee who best represents the Partys political platform;
e. burdened the Partys associational rights, and the rights of disassociation, by
imposing upon the Party a nominee who may not necessarily be a Party member and
without guaranteeing that nominee has been selected by a majority of Party members
participating in the primary election;
f. burdened the Partys associational rights and rights to free speech, by taking away the
Partys right to have its nominees commit themselves to the Party Platform as the
standard by which my performance as a candidate and as an officeholder should be
evaluated, and replacing it with a process that requires only that candidates gather
signatures; and
g. burdened the Partys associational rights, and the rights of disassociation, by taking
away the Partys convention system as its preferred way of selecting nominees and
allowing a party to designate candidates in the primary election by convention only if
it agrees to open that primary election, that the State now mandates, to persons
unaffiliated with the Party; and
h. otherwise burdening the Partys rights of association, or depriving it of its rights of
37
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disassociation, free speech and due process as set forth above.

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

114.
Enforcement of SB54 constitutes an imminent and ongoing threat by the State of
Utah, acting by and through Defendants, to deprive the Party and its members of their civil rights
and constitutionally protected rights.
115.
The Party will suffer irreparable injury if its nominees are selected in the manner
now dictated by the election code, as amended by SB54, where the Party and its members are
deprived of the right
a. to certify and endorse its nominees for elected office;
b. to communicate its endorsement on the general election ballot and to control the use
of its name and emblem on the ballot;
c. to determine for itself the candidate selection process that will produce a nominee
who best represents the Partys political platform;
d. to determine the internal rules and procedures that govern that designated candidate
38
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selection process, free of the States threat to deprive the Party of its rights if it
refuses to comply with rules that disadvantage the Party and that conflict with the
Partys chosen rules;
e. to require that Partys nominee is a member selected by either a supermajority of
Party delegates or a majority of Party members participating in the primary election;
f. to require that its nominees commit themselves to the Party Platform as the standard
by which [their] performance as a candidate and as an officeholder should be
evaluated;
g. to require that, in order to keep aspects of the Partys convention system, the Party
open up its primary election, that the State now mandates, to persons unaffiliated with
the Party; and
h. to exercise its rights of association, free speech, and disassociation as set forth above.
116.
SB54 deprives the Party, and its members and supporters, of the right to due
process of law as guaranteed by the Fourteenth Amendment to the United States Constitution,
without a compelling state interest.
117.
Pursuant to 28 U.S.C. 2201, the Court should enter a declaratory judgment
stating that SB54 violates the Partys rights and 42 U.S.C. 1983, and should enter a permanent
injunction enjoining enforcement or application of SB54 to the Party.
THIRD CAUSE OF ACTION
Trademark Infringement
118.
39
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119.
Under 15 U.S.C. 1125(a), a state or its employees acting in their official
capacity, who in connection with any goods or services, uses any word, term, name, symbol, or
any combination thereof, of any false designation of origin, false or misleading description of
fact, or false or misleading representation of fact, which is likely to cause confusion, or to cause
mistake, or to deceive as to the affiliation, connection, or association of such person with another
person, or as to the origin, sponsorship, or approval of his or her goods, services, or commercial
activities by another person, shall be liable in a civil action by any person who believes that he or
she is or is likely to be damaged but such act.
120.
Under 15 U.S.C. 1116, a party may obtain from this court an injunction to
prevent the violation of 15 U.S.C. 1125(a), and under 15 U.S.C. 1117, the prevailing party
may obtain damages, costs and reasonable attorney fees.
121.
As demonstrated above, the State through SB54 has sought to misallocate the
name, title, emblems, and endorsements of the Party, including the Party Mark, and use them in a
way in its administration of the primary and general elections in Utah, and in the actions that it
seeks to prohibit by SB54, that falsely designates the Partys endorsement of nominees, and
which is likely to cause confusion, mistake and deceive Utahns concerning the affiliation,
connection, sponsorship or association with the Party of the person receiving the Partys
nomination under SB54, or contribute to the false designation of the Partys endorsement, in a
way that harms the Party and dilutes its message.
122.
Pursuant to 15 U.S.C. 1116, 1117 & 1125(a), the Party is entitled to a
declaratory judgment, injunction, damages, costs and attorneys fees to remedy the infringement
of SB54 on the Partys rights and enjoin the enforcement or application of SB54.
40
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PRAYER FOR RELIEF

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

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

/s/ Marcus R. Mumford
Attorney for Plaintiff
41
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VERIFICATION
I, James Evans, Chairman of the Utah Republican Party, have read the foregoing
Complaint and declare under penalty of perjury that it is true and correct, and true and correct to
best of my knowledge, information and belief.
Executed on this 26th day of November, 2014.
_______________________________
James Evans
Case 2:16-cv-00038-DN Document 2-2 Filed 01/15/16 Page 1 of 4

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Case 2:16-cv-00038-DN Document 2 Filed 01/15/16 Page 1 of 30

Marcus R. Mumford (12737)

Case No. _____________

GARY R. HERBERT, in his Official

Plaintiff Utah Republican Party is an unincorporated association established under Title

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Utah Code Ann. 67-1-1(1).

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Venue is proper pursuant to 28 U.S.C. 1391.

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Case 2:16-cv-00038-DN Document 2 Filed 01/15/16 Page 5 of 30

Case 2:16-cv-00038-DN Document 2 Filed 01/15/16 Page 6 of 30

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Const. Art. XII.2.I & 5.A.

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On November 3, 2015, the court issued its order striking 20A-9-101(12)(a) as

10/27/2015 Hrg.), at 34:7-9.

Case 2:16-cv-00038-DN Document 2 Filed 01/15/16 Page 9 of 30

enforcement as applied to the Party.24

Relying on the plain language of SB54, as well as statements made by or on behalf of

Case 2:16-cv-00038-DN Document 2 Filed 01/15/16 Page 10 of 30

Cox, dated November 19, 2015, available at http://elections.utah.gov/Media/Default/

Case 2:16-cv-00038-DN Document 2 Filed 01/15/16 Page 11 of 30

Case 2:16-cv-00038-DN Document 2 Filed 01/15/16 Page 12 of 30

objection the Party might make to candidates who gather signatures.33

Case 2:16-cv-00038-DN Document 2 Filed 01/15/16 Page 13 of 30

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New Hampshire v. Maine, 532 U.S. 742, 749 (2001).

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Compare id. at 19-20.

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Republican Party, and by the Party itself.

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following political subdivisions obtain signatures in the following amounts:

registered Republican voters in the State of Utah.

Utah Code Ann. 20A-9-408.

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Registered Party Members

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Registered Party Members

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These requirements exceed any signature-gathering requirement ever allowed by the

By imposing such high levels of signature-gathering requirements on candidates seeking

in this cause of action.

Case 2:16-cv-00038-DN Document 2 Filed 01/15/16 Page 25 of 30

States Constitution, and 42 U.S.C. 1983.

exercise of constitutionally protected First Amendment associational rights.

The Party is entitled to a declaratory judgment establishing the unconstitutionality of the

SB54 set forth above as applied to the manner in which

Case 2:16-cv-00038-DN Document 2 Filed 01/15/16 Page 26 of 30

f. burdened the Partys associational rights, and the rights of disassociation, by

Case 2:16-cv-00038-DN Document 2 Filed 01/15/16 Page 27 of 30

Partys rights as set forth above without a compelling state interest.

in this cause of action.

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Case 2:16-cv-00038-DN Document 2 Filed 01/15/16 Page 29 of 30

enjoining enforcement or application of SB54 to the Party.

A declaratory judgment, pursuant to 28 U.S.C. 2201, declaring that SB54

A permanent injunction enjoining enforcement and implementation of SB54;

attorneys fees under 42 U.S.C. 1988; and