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United Utah Party v. Cox

United States District Court, D. Utah, Central Division

August 2, 2017

UNITED UTAH PARTY, an unincorporated political association of Utah citizens; JIM BENNETT, an individual; DIANE KNIGHT, an individual; VAUGHN R. COOK, an individual, and AARON AIZAD, an individual, Plaintiffs,
v.
SPENCER J. COX, in his official capacity as the Lieutenant Governor of the State of Utah, Defendant.

          MEMORANDUM DECISION AND ORDER GRANTING [5] PLAINTIFFS' MOTION FOR PRELIMINARY INJUNCTION

          David Nuffer United States District Judge.

         District Judge David Nuffer This case arises because former Congressman Jason Chaffetz resigned partway through his term in office for Utah's Third Congressional District in the United States House of Representatives. Plaintiffs seek to have a new political party and its candidate included on the ballot of the special election set November 7, 2017 to fill the currently vacant seat (the “Special Election”).

         The United Utah Party (“UUP”) is newly founded. Jim Bennett is a potential UUP candidate for the vacant congressional seat. The other three plaintiffs are Utah voters (one registered Democrat, one registered Republican, and one unaffiliated) with an interest in voting for a UUP candidate for office.[1]

         Plaintiffs United Utah Party, Jim Bennett, Diane Knight, Vaughn Cook, and Aaron Aizad (“Plaintiffs”) filed a Motion for Temporary Restraining Order and Preliminary Injunction (the “Motion”)[2] on June 21, 2017. Plaintiffs seek to enjoin the Lieutenant Governor (the “Lt. Governor”) of the State of Utah (the “State”) from “failing to include the nominee of the United Utah Party on the ballot in the special election to be held on November 7, 2017, in the Third Congressional District.”[3] Plaintiffs contend that the Lt. Governor's Special Election deadlines and procedures (the “Special Election Procedures”) effectively barred UUP or any other new political party formed in response to the vacancy in the congressional office from participating in the Special Election, which violates Plaintiffs' First and Fourteenth Amendment rights.

         No temporary restraining order was issued[4] because the Lt. Governor received notice of the Motion, and the parties briefed the Motion on an expedited briefing schedule.[5] The parties presented oral argument at a hearing on the Motion.[6]

         Based on the current record, a preliminary injunction is GRANTED. Under the standard for constitutional challenges to state election laws articulated by the United States Supreme Court, the Special Election Procedures violate the First and Fourteenth Amendments. The Constitution guarantees the freedom to associate in political parties for the advancement of beliefs and ideas. The State's interests do not require or justify effectively barring UUP and its candidate, Mr. Bennett, from participating in the Special Election as a new political party.

         Therefore, the Lt. Governor is ordered to include Mr. Bennett as the UUP candidate in the Special Election.

         Table of Contents

         Background ..................................................................................................................................... 4

         The Law of Congressional Special Elections ..................................................................... 4

         The Lt. Governor Oversees Elections and Party Registration. . .......................................... 5

         Utah's Election Code Provides a Process for New Political Parties to Register. . .............. 6

         The Lt. Governor Takes Many Actions Related to Primary Elections When a New Party is Certified. . ....................................................................................... 9

         Utah's Election Code Provides Processes for Candidate Access to the Regular Primary Election Ballot. . .................................................................................................... 10

         Utah's Election Code Provides Processes for Candidate Access to the Regular General Election Ballot. . .................................................................................................... 11

         Representative Chaffetz's Resignation Necessitated a Special Election. . ........................ 12

         The Lt. Governor Established Procedures for a Congressional Special Election. . ........... 12

         Rationale for Lt. Governor's May 19 Order ......................................................... 15

         The UUP Seeks to Organize and Participate in the Special Election. . ............................. 17

         Actions Taken Furthering Jim Bennett's Candidacy ............................................ 20

         Summary of UUP and Bennett Actions ................................................................ 21

         Lt. Governor Procedures - Special Primary Election to Special General Election .......... 22

         Only the Lt. Governor's Procedures Exclude New Parties from the Special Election. .... 23

         The Election Office Review of UUP's Petition Was Unnecessarily Delayed. . ................ 24

         Elimination of Election Office Delays Would Have Allowed Full Registration of the UUP Before the Special Primary Election ............................................................ 26

         The Lt. Governor Did Not Consider Participation of New Parties in the Special Election ............................................................................................................................... 28

         The State Faces No Significant Burdens in Including the UUP and Its Candidate in the Special General Election. . ..................................................................................... 28

         Procedural Standard ...................................................................................................................... 29

         Discussion ..................................................................................................................................... 30

         A Flexible Legal Standard Applies to Constitutional Challenges to Election Laws. . ...... 30

         The Special Election Procedures Severely Burden Plaintiffs' Constitutional Rights ....... 32

         The Character of the Asserted Injury: The Special Election Procedures Violate Plaintiffs' First and Fourteenth Amendments Rights. . ............................. 32

         The Magnitude of the Asserted Injury: The Special Election Procedures Severely Burden Plaintiffs' Rights. . ........................................................................ 36

         The Interests Asserted by the Lt. Governor Do Not Justify or Necessitate a Complete Bar to New Political Party Participation in the Special Election ................................. 37

         The State Interests Identified by the Lt. Governor Are Insufficient. . ................... 37

         The Lt. Governor Could Have Accommodated Formation of a New Political Party Before the Special Primary Election. . ....................................................... 41

         The Facts Demonstrate the UUP and its Candidate Are Ready to Participate in the Special Election ........................................................................................ 45

         State Interests Do Not Justify Exclusion of the UUP from the Special Election. 46

         Plaintiffs Will Suffer Irreparable Harm in the Absence of Preliminary Relief. . .............. 47

         The Balance of Equities Is Strongly in Plaintiffs' Favor. . ................................................ 47

         The Injunction Is in the Public Interest. . ........................................................................... 48

         No Bond Is Required. . ...................................................................................................... 48

         Order and Preliminary Injunction ................................................................................................. 49

         BACKGROUND

         The following factual record is preliminary, based on information as of the date of this Memorandum Decision and Order and is subject to revision based on evidence presented in any later proceedings, including trial. The record is drawn largely from undisputed facts stipulated by the parties, [7] together with the Verified Complaint[8] and the statements and exhibits presented in the briefs submitted in support of[9] and in opposition to[10] the Motion. This Order finds some facts which the parties identified as disputed.[11] The disputes are resolved after considering the record and argument at the hearing.[12] The parties' cooperation in developing a record in a short period of time is greatly appreciated and has greatly served the public interest.

         This background section begins with an explanation of the legal framework of the Special Election, to enable the facts specific to Plaintiffs' claims to be understood in that context. There is no dispute as to the legal framework.

         The Law of Congressional Special Elections

         Utah Code § 20A-1-502 provides that “[w]hen a vacancy occurs for any reason in the office of a representative in Congress, the governor shall issue a proclamation calling an election to fill the vacancy.” Under Utah law, the Governor proclaims a special election, and the Lt. Governor has authority to establish the Special Election Procedures.[13] While Utah has an extensive election code (with procedures for general elections, special statewide elections, and local elections), there are no statutory provisions other than Utah Code § 20A-1-502 applicable to a congressional special election.[14]

         Unlike a seat in the United States Senate, which can be filled by appointment by the Governor until the seat is filled at the general election, a vacancy in the House of Representatives can be filled only by special election.[15] This odd difference between the methods of filling vacancies arises because vacancies in the office of Representative are filled by an election mandated by the U.S. Constitution, Article I, section 2, clause 4, while vacancies in the office of Senator may be filled by appointment of the “executive” of a state, or a special election, under a process outlined in Amendment XVII, U.S. Constitution, passed in 1913. The ability of a governor to appoint a Senator, who serves a six-year term, contrasts with the requirement of an election to fill a vacancy in the office of Representative, who serves for only a two-year term. This disparity in process explains the prevalence of reported cases involving special elections for the office of Representative. These disputes arise and must be resolved in compressed timeframes.

         The Lt. Governor Oversees Elections and Party Registration.

         The Lt. Governor, who has been sued in his official capacity only, is the Chief Election Officer for all statewide ballots and elections.[16] In his capacity as Chief Election Officer, the Lt. Governor exercises general supervisory authority over all elections and direct authority over the conduct of elections for federal officers.[17] The Lt. Governor is also responsible for reviewing information submitted by organizations seeking to become political parties in the State of Utah, and for certifying qualified organizations as newly Registered Political Parties under the Utah Election Code.[18]

         The Lt. Governor's Office includes an Election Office, which is headed by Mark Thomas, the Director of Elections.[19] In addition to Mr. Thomas, the Election Office is staffed by three employees: a deputy election director and two assistants.[20] The Election Office may draw on other employees within the Lt. Governor's Office for help if the need arises.[21] The Election Office operates under the Utah Election Code.[22]

         Due to Utah's lack of statutory procedures for a congressional special election, the process for such an election, except for the date of the election which is set by the Governor, is established entirely by the Lt. Governor.

         Utah's Election Code Provides a Process for New Political Parties to Register.

         In Utah, Registered Political Parties may participate in regular primary elections which select the parties' candidates for regular general elections.[23] Only candidates nominated by a Registered Political Party are placed on the general election ballot with a party designation.[24] A “Registered Political Party” is any party that: (1) participated in the last regular general election and met a certain vote threshold in at least one of the last two regular general elections; or (2) is a new political party and has complied with the petition and organizational requirements of the Election Code.[25]

         The Utah Election Code defines the process for an organization of registered voters to become a Registered Political Party. To become a Registered Political Party, an organization of registered voters must file with the Lt. Governor a petition seeking Registered Political Party status and other documents.[26] The voters may circulate their petition to become a Registered Political Party “beginning no earlier than the date of the statewide canvass held after the last regular general election, ” which is usually around the end of November of an election year, [27] and “ending no later than November 30 of the year before the year in which the next regular general election will be held.”[28] Thus, political party formation must occur principally in a year in which there is no general election. The petition must be signed by at least 2, 000 registered voters. After the petition is filed with the Lt. Governor, the Lt. Governor is required to determine whether the required number of voters appears on the petition and review the proposed name and emblem of the new political party, which appear on the petition, to determine if they are distinguishable from other parties' names and emblems, and certify findings “within 30 days.”[29]

         If the Lt. Governor determines that the petition meets these requirements, the Lt. Governor then authorizes the filing officer to organize the prospective Registered Political Party.[30] Party organizers are next required to file various items, including the names of the party officers or governing board with the Lt. Governor. This must be done on or before March 1st of regular general election year.[31] After the Lt. Governor has reviewed that filing and determined that all proper procedures have been completed, the Lt. Governor issues a certificate naming the organization as a Registered Political Party in Utah and informs each county clerk that the organization is a Registered Political Party in Utah.[32] A Registered Political Party may qualify as a Qualified Political Party by filings which commit to allow candidates access to the ballot by convention or by gathering signatures.[33]

         Utah voters who want to form a newly Registered Political Party ordinarily have months in advance of a regular general election to organize, prepare party constitutions and bylaws, gather petition signatures, submit required documentation, and wait for the Lt. Governor to certify findings and issue a certification of new party status.[34]

         The Lt. Governor's Office follows a careful process to ensure election officials are fully prepared prior to issuing the certification to a political party.[35] This is because “recognition as a registered political party is a significant event that carries with it privileges and responsibilities” such as recognition for at least two years, the right to “place the names of its nominee on the primary and regular general election ballots under the party's name, ” and becoming “a state actor [that] must act within the boundaries of the Constitution.”[36]

         The Lt. Governor Takes Many Actions Related to Primary Elections When a New Party is Certified.

         When a new Registered Political Party is certified in Utah, the Lt. Governor is required to change, print, and provide new voter registration forms throughout the state including to the county clerks, each public assistance agency, armed forces recruitment offices, and each state driver license division. Software changes are made to the Election Management System to ensure a new voter or a current voter can register for the new Registered Political Party. The online voter registration system must be changed to allow a voter to register with the new Registered Political Party. Absentee ballot request forms and Political Party Affiliation forms are adjusted and appropriately distributed to the county clerks. These changes are principally relevant to primary elections for parties who have chosen to have a primary open only to party members. Party affiliation of a voter is not relevant in a general election in Utah, though voter affiliation may be designated in the voter registration form.

         The Lt. Governor's Office usually completes these tasks prior to officially certifying the Registered Political Party to ensure election officials are fully prepared for primary election voters who may affiliate or switch political parties. The Lt. Governor's Office has received complaints in the past from a newly Registered Political Party because the voter registration form had not been updated prior to the certification and has been accused of certifying a new Registered Political Party but not providing a way for voters to affiliate with the new Registered Political Party.[37] Again, these issues are only relevant in primary elections.

         The Lt. Governor also contacts the State Tax Commission to ensure they make the appropriate program and form changes to the “check a buck” program which allows a citizen to have taxpayer's funds go to Registered Political Parties.[38] This step is unrelated to any election and is more important in the tax-paying season.

         Utah's Election Code Provides Processes for Candidate Access to the Regular Primary Election Ballot.

         Utah Code § 20A-8-401(2) provides that “each new political party seeking registration, and each unregistered party seeking registration shall ensure that its constitution or bylaws contain:

(b) a procedure for selecting party officers that allows active participation by party members; [and]
(c) a procedure for selecting party candidates at the federal, state, and county levels that allows active participation by party members.[39]

         To fulfill the requirements of Utah Code § 20A-8-401(2)(c), Registered Political Parties select general election candidates in a primary election. However, a political party's unopposed candidate will go directly on the general election ballot without a primary.[40]

         A candidate for a Registered Political Party becomes eligible to access the primary election ballot if the candidate collects signatures of 2% of the Registered Political Party's members within the political district.[41] And if a candidate is a member of a Registered Political Party which is qualified as Qualified Political Party, the candidate may seek the party's designation for the primary election ballot through a party convention.

         The parties to this action agree that each of Utah's five Registered Political Parties[42] have submitted official paperwork with the Lt. Governor's Office designating themselves as a Qualified Political Party.[43]

         Utah's Election Code Provides Processes for Candidate Access to the Regular General Election Ballot.

         Candidates who want to appear on a general election ballot may do so as candidates who win the nomination of a Registered Political Party or as unaffiliated candidates.[44]

         Unaffiliated candidates receive a place on the ballot for a regular general election by submitting a nominating petition with a sufficient number of signatures.[45]

         “All candidates . . . must also file a declaration of candidacy form and, unless seeking a waiver due to financial hardship, pay a filing fee.”[46]

         Utah law requires that regular general election ballots include a party designation for each candidate nominated by a Registered Political Party but requires all other candidates, regardless of their actual political affiliation, to be listed without a party name and with a disclaimer that “[t]his candidate is not affiliated with, or does not qualify to be listed on the ballot as affiliated with, a political party.”[47] Utah law provides no other way for a party candidate to be listed on the general election ballot with a party label.[48] Section 20A-8-102(2) of the Utah Election Code provides that “[u]nless an organization of registered voters is a Registered Political Party under this chapter, it may not place the names of candidates representing that organization upon the primary and regular general election ballots under the common organization name.”[49]

         The Utah Election Code contains no provision governing placement of the names of candidates representing an organization upon a congressional special election ballot under a common organization name.

         Representative Chaffetz's Resignation Necessitated a Special Election.

         The Associated Press reported on April 20, 2017, that Representative Jason Chaffetz of Utah's Third Congressional District “wouldn't seek re-election next year, ” and “may not even finish the two-year term that started four months ago.”[50] According to the same Associated Press article, Chaffetz said in a text message: “My future plans are not yet finalized but I haven't ruled out the possibility of leaving early. In the meantime I still have a job to do and I have no plans to take my foot off the gas.”[51] On May 18, 2017, Chaffetz's resignation was announced when he notified Utah Governor Gary Herbert of his intent to resign effective June 30, 2017.[52] Chaffetz's resignation came only a few months into his two-year term and left an 18-month vacancy to fill in his Third Congressional District seat.

         The Lt. Governor Established Procedures for a Congressional Special Election.

         On May 19, 2017, after receiving Representative Chaffetz's resignation letter, Governor Herbert issued a writ of election and proclamation, which set the special election date as November 7, 2017.[53] Later that same day, “[p]ursuant to Utah Code 20A-l-502, ” the Lt. Governor issued an order setting forth a Special Election process and calendar for the vacancy of the Third Congressional District of Utah (the “May 19 Order”).[54] The May 19 Order also provides that the Special Election will be conducted using the procedures for a regular general election except as provided in the Special Election Procedures and calendar attached to the order.[55]

         The May 19 Order:

• required candidates seeking nomination as a candidate for a Registered Political Party to file their declaration of candidacy form with the Lt. Governor by 5:00 p.m. on May 26, 2017;[56]
• set a deadline of June 12, 2017, at noon, for unaffiliated candidates to file a declaration of candidacy; • required parties nominating by convention to certify their nominee to the Lt. Governor by noon on June 19, 2017;[57]
• allows a special primary election to be held, if necessary, on August 15, 2017;[58]and • sets a deadline of August 31, 2017, for the Lt. Governor to certify the names of the candidates who will appear on the special general election ballot.[59]

         The Governor set the Special Election date of November 7, 2017, to coincide with the previously scheduled municipal general election date. The Lt. Governor adopted this date in the May 19 Order, stating that “[t]he special general election shall be held on the same day as the municipal general election, November 7, 2017. If a special primary election is needed, it shall be held on the same day as the municipal primary election, August 15, 2017.”[60] To “piggyback” the Special Election on the municipal primary and general elections, the Lt. Governor determined the Special Election process needed to begin immediately after Representative Chaffetz announced his resignation date.[61]

         The portion of the Lt. Governor's schedule[62] through certification of the general election ballot is:

         The Lt. Governor's Schedule through Certification of Special General Election Ballot

Date

Event

May 19, 2017

(1:00 p.m.)

Declaration of candidacy and intent to gather signature period begins for all candidates

May 26, 2017

(5:00 p.m.)

Declaration of candidacy and intent to gather signature period ends for partisan candidates

May 27, 2017

First day a party may hold a nominating convention

June 12, 2017

(12:00 p.m.)

Deadline for partisan signature gathering candidates to submit petition signatures

June 12, 2017

(12:00 p.m.)

Declaration of candidacy and signature submission period ends for unaffiliated candidates

June 16, 2017

Lt. Governor certifies qualified signature gathering candidates

June 19, 2017

(12:00 p.m.)

Last day for political parties to certify candidates nominated at convention to the Lt. Governor

June 19, 2017

(12:00 p.m.)

Lt. Governor issues a preliminary Special Primary Election ballot certification and delivers it to county clerks

June 30, 2017

Vacancy in Office of Representative for Utah's Third Congressional District.

June 30, 2017

Lt. Governor issues the Special Primary Election ballot certification and delivers it to county clerks

June 30, 2017

Ballots are sent to military & overseas voters

July 3, 2017

Last day for candidates to submit Primary Election profile to vote.utah.gov

July 17, 2017

Voter registration deadline (via mail)

July 25, 2017

Mail ballots are sent to voters

August 1, 2017

In-person early voting begins

August 8, 2017

Voter registration deadline (via online & in-person)

August 10, 2017

Absentee ballot request deadline

August 11, 2017

In-person early voting ends

August 15, 2017

Special & Municipal Primary Election

August 22, 2017

County canvass period begins

August 29, 2017

County canvass period ends

August 31, 2017

Lt. Governor canvasses Special Primary Election & certifies Special General Election ballot

         Rationale for Lt. Governor's May 19 Order

         The Lt. Governor states that providing a special election process and timeframe that coincided with the already scheduled municipal elections addressed the state's interests in efficient administrative processes, minimizing voter confusion by combining ballots, increasing voter turnout and participation, and saving taxpayers approximately $1.6 to $2 million.[63]

         The Lt. Governor was also concerned about advance mailing of ballots to military personnel and overseas citizens. Pursuant to Utah Code § 20A-16-403, and 52 U.S.C. § 20302(a)(8), the Lt. Governor and county and municipal clerks are required to deliver to military personnel and overseas citizens the primary election ballot 45 days prior to any federal election. For the August 15, 2017, special primary election, that day was June 30, 2017, under Utah law, and July 1, 2017, under federal law.[64]

         The Lt. Governor determined that he had about six weeks, from May 19 to June 30, 2017, to provide a declaration of candidacy period, signature collection period, signature review period, political party conventions period, unaffiliated declaration of candidacy period and provide sufficient time for election officials to develop, test, and qualify the special primary ballots prior to June 30, 2017. These steps in a regular general election take place over the course of four months.

         The Special Election involves seven counties and fifty-four municipalities.[65] Because Representative Chaffetz did not announce his resignation until May 18, 2017, and because the Lt. Governor set the deadline for party candidates to submit their declarations of candidacy on May 26, 2017, the UUP had less time to complete the steps necessary for Registered Political Party status for the upcoming Special Election compared to the 2018 general election.[66]

         The UUP Seeks to Organize and Participate in the Special Election.

         A month before Representative Chaffetz's announcement, in April 2017, the UUP was forming.[67] UUP had attracted some registered Democrat, registered Republican, and unaffiliated voters.[68] At that time, the next general Congressional election was at least 18 months away. The period for forming a new political party was open with several months left before the petition deadline of November 30, 2017.[69]

         UUP's timetable changed when its founders learned that Representative Chaffetz's seat was opening earlier than expected. On May 25, 2017, UUP held a press conference announcing their candidate for the Special Election.[70] UUP's initial filing provided to the Lt. Governor on May 25, 2017, expressly stated: “The party will hold a convention in June to adopt a constitution and bylaws and elect officers for the party.”[71] The UUP submitted approximately 2, 100 signatures to the Lt. Governor on May 25, 2017. The party submitted an additional approximately 600 signatures prior to 5:00 p.m. on May 26, 2017.[72] When Mr. Bennett and other representatives of the UUP submitted their signatures to the Lt. Governor's office on May 25, an election official said that the Election Office would do the best they can to quickly review their documents and petition signatures.[73] The Election Office determined that additional resources were not necessary to review the UUP petition signatures, believing that it could take the entire 30-day statutory review period.[74] The Election Office opted to complete its review using existing internal resources.[75] The Election Office did not complete its review and certification of the UUP's party petition signatures submitted on May 26, 2017, until June 26, 2017.[76]

         On May 26, 2017, the UUP sent its proposed bylaws and constitution to the Lt. Governor's office and chose to be designated as a Qualified Political Party.[77]

         On June 17, 2017, the UUP held an organizing convention at which the party adopted its constitution and bylaws, elected officers, and nominated Mr. Bennett in accordance with its bylaws as the UUP's unopposed candidate in the Special Election for the Third Congressional District seat.[78] No other person has attempted to file as a UUP candidate for the Third Congressional District seat. Prior to 12:00 p.m. on June 19, 2017, the UUP submitted a certification to the Lt. Governor's office certifying Jim Bennett as the UUP's nominee in the Special Election for Representative Chaffetz's seat. UUP also stated that “[c]ertification is requested promptly and certification for candidates to file for the special election is requested pending certification of the party.”[79]

         On June 26, 2017, after the expiration of the full 30-day period for review of a new party's petition, [80] the Lt. Governor certified that the UUP had submitted enough signatures to become a Registered Political Party and that the party's name and emblem are distinguishable from other parties.[81] After that certification, UUP was then authorized to organize the prospective Registered Political Party.

         On June 27, 2017, the Lt. Governor determined that the UUP need not hold another organizing convention in order to become a Registered Political Party.[82] On June 28, 2017, the UUP submitted to the Lt. Governor the names of party officers elected at the party's organizing convention and provided additional documentation requested by the Lt. Governor to complete the process of becoming a Registered Political Party.[83]

         On July 13, 2017, the Lt. Governor certified the UUP as a Registered Political Party[84]and requested that the UUP provide him with the “Party's procedures for remote voting or designating an alternate delegate if a delegate is not present at a political party's convention” in order to assist him in determining whether the UUP has met the statutory requirements to be a Qualified Political Party (“QPP”) under Utah Law.[85]

         On Monday, July 17, the governing body of the UUP met and adopted a policy on remote voting that permits party members to vote remotely at satellite locations linked to the party's convention by video conferencing technology. On the same day, the chair of the UUP communicated the remote voting policy to the Lt. Governor's office by electronic mail.[86]

         On Thursday, July 27, the Lt. Governor's office informed the chair of the UUP by telephone that the Lt. Governor's office had determined that the UUP's remote-voting policy does not meet the statutory requirements for QPP status because it does not permit a delegate to participate in convention unless the delegate can be physically present at a specified location.[87]

         On Monday, July 31, the UUP submitted to the Lt. Governor's office a proposed procedure for designating an alternate delegate in the event that a delegate is not able to attend the party's convention in person. The Lt. Governor and his staff reviewed the proposed procedure and determined that, if adopted, the proposed procedure would satisfy the requirement to be a QPP found in Utah Code § 20A-9-101(12)(a).[88]

         Later on July 31, the governing body of the UUP then met and adopted the procedure that had been reviewed by the Lt. Governor's office. On August 1, the chair of the UUP informed the Lt. Governor's office by electronic mail that it had adopted the procedure. On August 1, 2017, the Lt. Governor made a final determination that the UUP has met the statutory requirements for QPP status.[89]

         Actions Taken Furthering Jim Bennett's Candidacy

         Jim Bennett, a founding member of the UUP, is the UUP candidate for United States Representative in the Third Congressional District.[90] On the afternoon of May 26, 2017, Mr. Bennett went to the Lt. Governor's office to submit his declaration of candidacy.[91] Although the UUP had submitted its party petition signatures to the Lt. Governor's office, along with the party's proposed constitution and bylaws, prior to the 5:00 p.m. deadline, the Lt. Governor's office did not accept Mr. Bennett's declaration of candidacy for the UUP's nomination because the UUP was not yet a Registered Political Party in the State of Utah.[92]

         Under the May 19 Order, the last day to file as an unaffiliated candidate was June 12, 2017, at noon. Mr. Bennett did not file as an unaffiliated candidate. The last day to file as a write-in candidate for the Special Election is September 8, 2017.

         Summary of UUP and Bennett Actions

         In this table, the actions UUP took to become a Registered Political Party and Qualified Political Party (shown in red) are overlaid with the Lt. Governor's Special Election schedule, through certification of the general election ballot:

Date

Event

May 19, 2017 (1:00 p.m.)

Declaration of candidacy and intent to gather signature period begins for all candidates

May 25, 2017

UUP's initial petition with 2100 signatures provided to the Lt. Governor

May 26, 2017

UUP submits an additional approximately 600 signatures

May 26, 2017

UUP submits its proposed bylaws and constitution and chose to be designated as a qualified political party

May 26, 2017

Jim Bennett submits his declaration of candidacy to the Lt. Governor

May 26, 2017 (5:00 p.m.)

Declaration of candidacy and intent to gather signature period ends for partisan candidates

May 27, 2017

First day a party may hold a nominating convention

June 12, 2017

(12:00 p.m.)

Deadline for partisan signature gathering candidates to submit petition signatures for existing and prospective new parties.

June 12, 2017

(12:00 p.m.)

Declaration of candidacy and signature submission period ends for unaffiliated candidates

June 16, 2017

Lt. Governor certifies qualified signature gathering candidates

May 26, 2017

UUP submits its proposed bylaws and constitution to the Lt. Governor and chose to be designated as a qualified political party

June 17, 2017

UUP holds its convention and nominates Jim Bennett as its candidate

June 19, 2017, before 12:00 p.m.

UUP certified Jim Bennett as the UUP's nominee in the congressional special election to the Lt. Governor's office.

June 19, 2017

(12:00 p.m.)

Last day for political parties to certify candidates nominated at convention to the Lt. Governor

June 19, 2017

(12:00 p.m.)

Lt. Governor issues a preliminary Special Primary Election ballot certification and delivers it to county clerks

June 26, 2017

Lt. Governor certified that the UUP had submitted enough signatures to become a Registered Political Party and that the party's name and emblem are distinguishable from other parties

June 27, 2017

Lt. Governor determined that the UUP need not hold another organizing convention to become a Registered Political Party

June 28, 2017

UUP submitted to the Lt. Governor the names of party officers elected at the party's organizing convention and provided additional documentation requested by the Lt. Governor to complete the process of becoming a Registered Political Party.

June 30, 2017

Vacancy in Office of Representative for Utah's Third Congressional District.

June 30, 2017

Lt. Governor issues the Special Primary Election ballot certification and delivers it to county clerks

June 30, 2017

Ballots are sent to military & overseas voters

July 3, 2017

Last day for candidates to submit Primary Election profile to vote.utah.gov

July 13, 2017

Lt. Governor certified the United Utah Party as a Registered Political Party requested UUP provide additional information concerning whether the it has met the statutory requirements to be a Qualified Political Party

July 17, 2017

Voter registration deadline (via mail)

July 25, 2017

Mail ballots are sent to voters

August 1, 2017

Lt. Governor determines UUP has QPP status.

August 1, 2017

In-person early voting begi90ns

August 8, 2017

Voter registration deadline (via online & in-person)

August 10, 2017

Absentee ballot request deadline

August 11, 2017

In-person early voting ends

August 15, 2017

Special & Municipal Primary Election

August 22, 2017

County canvass period begins

August 29, 2017

County canvass period ends

August 31, 2017

Lt. Governor canvasses Special Primary Election & certifies Special General Election ballot

         Lt. Governor Procedures - Special Primary Election to Special General Election

         The Lt. Governor issued a preliminary certification of the primary ballots on June 19 to the county clerks in order to allow time to prepare, print, and distribute the primary ballots by June 30, 2017.[93] On June 30, 2017, the Lt. Governor issued the final primary ballot certification and the county clerks delivered primary ballots to voters that same day.[94] After the special primary election results are canvassed, the Lt. Governor will certify the candidates for the special general election ballots on or before August 31. On June 20, 2017, counsel for the Lt. Governor stated that Utah will not include the nominee of the UUP on the special general election ballot even if the party becomes a Registered Political Party before that date.[95] Pursuant to Utah Code § 20A-16-403, and 52 U.S. Code § 20302(a)(8), the Lt. Governor, county and municipal clerks are required to deliver to military personnel and overseas citizens the special general election ballot, 45 days prior to any federal election. For the November 7, 2017 election, that day is September 22, 2017, under Utah law, and September 23, 2017, under federal law.[96]

         Only the Lt. Governor's Procedures Exclude New Parties from the Special Election.

         Utah's party-registration statues and the Lt. Governor's May 19 Order made it impossible for a new political party to become registered prior to the May 26, 2017, candidate-filing deadline.[97] Nothing in Utah law prohibited the Lt. Governor from including in his May 19 Order a way for new political parties to participate in this Special Election.[98] As a practical matter, Utah's party registration statutes, the May 19 Order, and the Lt. Governor's timeframes for certifying a Registered Political Party in the context of a regular election cycle made it impossible for a new political party to have its nominee appear on the ballot in the Special Election unless the party had submitted its registration petition several months before Representative Chaffetz announced his intention to resign.[99]

         The Election Office Review of UUP's Petition Was Unnecessarily Delayed.

         The single longest delay in UUP registration was the Election Office review of the UUP petitions, from May 26 to June 26, 2017. This delay was entirely within the control of the Election Office. That period will be examined in detail.

         When the Election Office reviews petition signatures for political parties or candidate petitions, it begins by verifying that the person who circulated the petition meets the statutory requirements necessary to be a circulator-i.e., that the circulator is a Utah resident over 18 years of age.[100] The Election Office then reviews the individual petition signatures and the accompanying address, birthdate, and signature to ensure that information matches the information the State has on file.[101] For candidate petitions, the Election Office also reviews the petition signatures to ensure that the voter did not sign another petition for the same candidate.[102]Utah's voter registration database (“VISTA”) usually contains all of the information necessary for the Election Office to review petition signatures.[103] If a signature has been collected by a careful circulator, and the name, address, and birth date included on the petition is the same as the information contained in VISTA, it takes approximately 60 to 90 seconds for the Election Office to review a signature.[104]

         During this Special Election, two party candidates submitted candidate petition signatures: Tanner Ainge and John Curtis.[105] Mr. Ainge submitted his candidate petition signatures on Tuesday, June 6, 2017, or Wednesday, June 7, 2017.[106] The Election Office reviewed those petitions and certified 7, 000 signatures within approximately one week.[107] Mr. Curtis submitted his candidate petition signatures on June 12, 2017. The Election Office reviewed those petitions and certified 7, 000 within 3 to 4 days.[108]

         In preparation for reviewing the candidate petitions of Mr. Ainge and Mr. Curtis, the Election Office hired temporary employees and procured rental space and computer screens for those workers.[109]

         The Lt. Governor said he was aware on May 22, 2017, that the UUP intended to become a political party and run a candidate in the Special Election.[110] The Lt. Governor's Office has no information that the signatures the UUP submitted were in bad form or took an unusually long amount of time to verify.[111] The Lt. Governor has identified no defects in the UUP's process of organizing the party and, barring any technical computer issues with the state system and the public-based voter registration websites, intended to and did issue a certification to the UUP on July 13, 2017, confirming that it is a Registered Political Party in the State of Utah.[112] From start to finish, the process for the Lt. Governor to review the UUP's party petitions and organizational documents spanned from May 25, 2017, to July 13, 2017-i.e., seven weeks.[113] The UUP's registration application could have been completed in less than seven weeks if the Lt. Governor had taken different steps, such as using the temporary workers the Lt. Governor's office had hired to verify the UUP's 2, 000 signatures.[114] The review of 2, 000 signatures could have been completed in less than 30% of the time required to review 7, 000 signatures each for candidates Mr. Ainge (one week) and Mr. Curtis (3-4 days). 30% of the longer one-week period is less than two days.

         Elimination of Election Office Delays Would Have Allowed Full Registration of the UUP Before the Special Primary Election.

         The longest single period in UUP registration as a party was the 30-day review of petitions in the Lt. Governor's Office from May 26 to June 26, 2017. The second longest period was the document review from June 28 to July 13, 2017. Another long period was the time required for the UUP to show compliance for QPP status, from July 13 to August 1, 2017. Reducing the first period from 30 days to four; the second period from 15 days to two; and the third period from 15 days to five business days (due to UUP's inadequate submissions) shows the UUP registration process could have been completed as follows, enabling UUP to be recognized before the UUP convention and certification of the primary election ballot:

Date

Event

May 19, 2017 (1:00 p.m.)

Declaration of candidacy and intent to gather signature period begins for all candidates

May 25, 2017

UUP's initial petition with 2100 signatures provided to the Lt. Governor

May 26, 2017

UUP submits an additional approximately 600 signatures

May 26, 2017

UUP submits its proposed bylaws and constitution and chose to be designated as a qualified political party

May 26, 2017

Jim Bennett submits his declaration of candidacy to the Lt. Governor

May 26, 2017 (5:00 p.m.)

Declaration of candidacy and intent to gather signature period ends for partisan candidates

May 27, 2017

First day a party may hold a nominating convention

June 12, 2017

(12:00 p.m.)

Deadline for partisan signature gathering candidates to submit petition signatures for existing and prospective new parties.

June 12, 2017

(12:00 p.m.)

Declaration of candidacy and signature submission period ends for unaffiliated candidates

June 16, 2017

Lt. Governor certifies qualified signature gathering candidates

May 26, 2017

UUP submits its proposed bylaws and constitution to the Lt. Governor and chose to be designated as a qualified political party

June 2, 2017

Lt. Governor could have certified that the UUP had submitted enough signatures to become a Registered Political Party and that the party's name and emblem are distinguishable from other parties

June 5, 2017

Lt. Governor could have determined that the UUP need not hold another organizing convention to become a Registered Political Party

June 6, 2017

UUP could have submitted to the Lt. Governor the names of party officers elected at the party's organizing convention and could have provided additional documentation requested by the Lt. Governor to complete the process of becoming a Registered Political Party.

June 8, 2017

Lt. Governor could have certified the United Utah Party as a Registered Political Party and could have requested UUP provide additional information concerning whether the it met the statutory requirements to be a Qualified Political Party

June 15, 2017

Lt. Governor determines UUP has QPP status.

June 17, 2017

UUP holds its nominating convention and nominates Jim Bennett as its candidate

June 19, 2017, before 12:00 p.m.

UUP certified Jim Bennett as the UUP's nominee in the congressional special election to the Lt. Governor's office.

June 19, 2017

(12:00 p.m.)

Last day for political parties to certify candidates nominated at convention to the Lt. Governor

June 19, 2017

(12:00 p.m.)

Lt. Governor issues a preliminary Special Primary Election ballot certification and delivers it to county clerks

June 30, 2017

Vacancy in Office of Representative for Utah's Third Congressional District.

June 30, 2017

Lt. Governor issues the Special Primary Election ballot certification and delivers it to county clerks

         The Lt. Governor Did Not Consider Participation of New Parties in the Special Election.

         Every deadline in the May 19 Order would not exist but for the May 19 Order.[115] Although the May 19 Order compresses the statutory election calendar as compared to the regular election calendar, the May 19 Order makes no accommodations for or adjustments to the political party statutory process for becoming a Registered Political Party.[116] At the time the Lt. Governor issued the May 19 Order, “there just wasn't any real discussion related to any potential because I-we just weren't-it wasn't an issue that had come up, other than in talking about scenarios that-and timeliness and other issues.”[117] The Lt. Governor's Office admits it never made a determination that the Lt. Governor could not make adjustments in the May 19 Order to the political party statutory process for becoming a Registered Political Party.[118]

         The State Faces No Significant Burdens in Including the UUP and Its Candidate in the Special General Election.

         Adding the UUP as an additional party and its candidate to the already scheduled special general election likely would not result in any cost increase to the State, and the Lt. Governor's Office is not aware of any voter confusion that has arisen from any of the other congressional special elections around the country this year.[119] No one other than Mr. Bennett attempted to file a declaration of candidacy seeking to be on the ballot in the Special Election for a political party that is not registered.[120] The Lt. ...


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