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Utah GOP Sues to Stop State's New Primary Election Process

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By Mark Wilson, Esq. on December 03, 2014 4:44 PM

Earlier this year, Utah became one of the many states to allow political party candidates for office to be selected by way of a "direct primary" system. This system is already in existence in many states, but it's a change for Utah, which left up to the parties the method by which it chose nominees. Typically, Utah used neighborhood caucuses to find candidates. The winners of caucuses would then be nominated (or not) at the party's statewide convention.

The Republican Party in Utah (well, some of its members, anyway) didn't like this very much and decided to sue the governor, alleging that the new legislation dilutes the ability of a political party to select its own candidates and unconstitutionally places control of selecting the party's candidate in the hands of the state, not the party.

A Carrot and a Stick -- but Mostly a Stick

The state Republican Party objected on the ground that the law supersedes the party's own internal rules for selecting candidates. For one thing, it claims in the lawsuit, a candidate could claim to be affiliated with the Republican Party even if he or she wasn't actually endorsed by that party. Whoever wins a party's primary election is necessarily that party's nominee, whether or not the party actually wants that person as its nominee.

The law also forces parties to comply with the direct primary system by preventing a caucus-nominated candidate from being described with a political party affiliation on the general election ballot. If a candidate is selected by primary, then that candidate is allowed to mention his or her party affiliation on the general election ballot.

Freedom of Expressive Association

While the U.S. Supreme Court has guaranteed freedom of expressive association, the jury is out -- sort of literally -- on whether state regulation of elections to this degree is unconstitutional. For example, in 2007, the Fourth Circuit Court of Appeals held unconstitutional a Virginia law mandating open primaries (primaries in which anyone can vote for any candidate, regardless of the voter's registered political party) as violative of that freedom of expressive association. That opinion, however, was limited only to the facts of Virginia's situation.

On the flip side, in 1986, the U.S. Supreme Court invalidated a Connecticut law purporting to require voters in a party primary to be members of that party. The Court said it wasn't permissible for the state to tell political parties how their primaries could operate beyond regulating their "time, place, and manner."

In this case, however, Utah has essentially told political parties that if it doesn't use party primaries, its candidates will be relegated to an "unaffiliated" third column on the general election ballot. And if it does use party primaries, then Utah has also prescribed that the party really doesn't have a say in who its nominee will be.

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