James Evans Letter to Spencer Cox 12.3.2015

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James Evans Letter to Spencer Cox 12.3.2015

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Utah Republican Party 117 E South Temple Salt Lake City, UT 84111 www.utgop.org December 3, 2015 VIA EMAIL AND U.S. MAIL Lieutenant Governor Spencer J. Cox Utah State Capitol Complex, Ste. 220 Salt Lake City, Utah 84114-2325 Email: sjc@utah.gov Dear Lt. Governor Cox: I write as a follow up to my letter a few weeks ago, even though you said it was unnecessary, to clarify what, if any, disagreements exist between the Utah Republican Party (the Party) and your office regarding SB54 and the matters raised at the recent hearing in Utah Republican Party v. Herbert, et al., Case No. 2:14-cv-876-DN (D. Utah). I am in receipt of your recent letter to the Party dated November 19, 2015, and your offices letter to Utah Senator Todd Weiler dated November 20, 2015. Background It is important in discussing these matters that we acknowledge how we got to this point. Your letters argue that the Partys views are inconsistent with the intent of SB54, but you do not point to anything in the public record to support that assertion.1 To the contrary, your office spent the better part of this past year arguing that the intent of SB54 was irrelevant.2 If anything, the legislative history of SB54 reveals its unconstitutional overreach, as lawmakers admitted that it was the product of an agreement with Count My Vote to compromise the Partys dominance and efforts to hold Republican candidates accountable to the Party platform, in part by forcing the Party to choose to open its primary to unaffiliated voters.3 1 The Utah Legislatures floor debates regarding SB54 are available at http://le.utah.gov/jsp/jdisplay/ billaudio.jsp?sess=2014GS&bill=sb0054&Headers=true. 2 See, for example, the brief your counsel filed accusing the Party of violating a Court order by trying to introduce evidence concerning the Legislatures purpose or intent in passing SB54. Doc. 194 at 36. 3 See Senate, day 24 (Day 24), at approx. 53:03 (statement of Sen. Bramble); id. at approx. 1:02:02 (statement of Sen. Hillyard); id. at approx. 1:20:25 (statement of Sen. Jones); id. at approx. 1:01:21 (statement of Sen. Weiler); audio file of floor debate in the Senate, Day 37, at approx. 23:55 (statement of Sen. Bramble); id. at approx. 30:59 (statement of Sen. Dabakis); id. at approx. 41:18 (statement of Sen. Weiler); audio file of floor debate in the House, Day 37, at approx. 1:40:01 (Rep. Powell); id. at approx. Lt. Governor Cox December 3, 2015 Page 2 of 9 The Court has now struck down that part of SB54. But the Court upheld the remainder of SB54 based on the positions your office took in the litigation. Recall how the Party initially raised in its lawsuit concerns about how SB54 would have the State intrude on the Partys internal candidate selection process. Your office publicly disputed those allegations and whether the Party needed to make any changes to its rules or procedures to certify its preferred candidates to the general election ballot.4 Your representative admitted under oath that you have little, if any, interest or authority to review the Partys rules or dictate to the Party how it should select its candidates.5 Based on the position you took, the Court rejected the Partys concerns that its nominee may not necessarily be a party member or committed to the party platform, suggesting instead that the Party should adjust its membership requirements to resolve them.6 The Court summarized your position to give the Party assurances 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.7 In his formal order denying the Partys preliminary injunction motion, Judge Nuffer explained that 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.8 Significantly, his analysis of that issue invited the Party to file objections to a candidates declaration of candidacy under Utah Code 20A-9-202(5) as one way to ensure that candidates comply with its rules.9 I understand from your letters of November 19 and 20 that you intend to overrule any objection filed by the Party challenging a candidate who attempts to circumvent the Partys rules and seek its nomination by signature-gathering. After the April 10 hearing where the Court denied the Partys preliminary injunction motion, the Party acted in reliance on the Courts statements and your offices sworn testimony, amending its Constitution and Bylaws to address the issues raised by SB54, as follows: - 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 ....10 1:45:46 (statement of Rep. Nelson); id. at approx. 1:53:42 (statement of Rep. Chavez-Houck); id. at approx. 1:56:28 (statement of Rep. King); id. at approx. 2:24:26 (statement of Rep. McCay). 4 See deposition of Mark Thomas, Director of Elections (Thomas Tr.), at 119:6-124:7, 131:14-17, 132:9-133:15; 145:18-147:8; 148:24-149:23; 151:21-152:25. 5 Id. at 99:11-103:21, 103:17-104:19, 111:7-112:10, 133:3-24, 135:7-136:5. 6 4/10/2015 Hrg. Tr. at 124:7-12. 7 Id. 8 September 24, 2015 Order, Doc. 170, at 20. 9 Id. at 20 n.79. 10 2015 Utah Republican Party Constitution (hereinafter Const.) Art. I, C. Lt. Governor Cox December 3, 2015 Page 3 of 9 - 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 .11 - The Party amended the specific provisions of its caucus/convention candidate selection procedure 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 the top two candidates to run in a primary election only if neither receives 60% or more of the delegates vote at the convention.12 These are the only ways that the Party authorizes any candidate to appear on the general election ballot with its official mark and endorsement. After enacting these amendments, on August 18, 2015, the Party sent a letter to your office designating 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. On October 27, 2015, the Court held a hearing on pending motions for summary judgment. At that hearing, the Court pointed out that 20A-9-101(12)(d) only required that members of a QPP be permitted to seek nomination by either or both convention method or signature gathering, asking your counsel to tell me what that means.13 In response, your legal counsel admitted that those provisions should be interpreted to hold that a QPP only has to permit nomination by convention under 101(12)(d).14 Your counsel suggested that provision conflicted with 20A-9-406(3), which, he argued, reaffirm[ed] the right of the individual,15 indicating that would be the next lawsuit.16 Analysis 1. Judicial Estoppel We are ready to pursue it, if needed, but this issue does not have to be the next lawsuit. As you know, based on the arguments presented in the lawsuit, the Court granted summary judgment to the Party, ruling that SB54 was unconstitutional, and striking down 101(12)(a), because it would have forced association with unaffiliated voters in any primary election, contrary to the Partys candidate selection processes. Your November 19 and 20 letters now threaten to disqualify the Party as a QPP if it does not allow its members to seek its nomination by both 11 2015 Utah Republican Party Bylaws (Bylaws), 8.0(A). 12 Const. Art. XII.2.I & 5.A. 13 10/27/2015 Hrg. Tr. at 34:7-9. 14 Id. at 34:20-24, 35:17-23, 36:8-10. 15 Id. at 34:25-35:6. 16 Id. at 35:13-15. Lt. Governor Cox December 3, 2015 Page 4 of 9 convention and signature-gathering methods. First, that is contrary to the positions that you have taken in the lawsuit, especially to what your attorney asserted at the October 27 hearing. 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.17 You can see above how the Party relied on the positions your office took in defense of SB54, and you cannot dispute that Judge Nuffer relied on those statements in rendering his rulings, including where he left the rest of SB54 in tact. If, as it appears, the Attorney Generals Office is recommending that you force the Party, under threat of disqualification, to accept candidates who admittedly do not comply with the rules governing its candidate selection process, you are being terribly misled. I urge you to reconsider. 2. Either or Both Contrary to your letters and the statements of your counsel at the October 27 hearing, we do not believe there is any need to read 101(12)(d) and 406(3) as conflicting. Section 101(12)(d) requires that a QPP permit its members to seek its nomination by either or both of two methods. And 406(3) merely provides that an individual may only seek the nomination of the qualified political party by using a method described in Section 20A-9-407, Section 20A-9-408, or both. The phrase either or both in these provisions should be construed pursuant to its plain language. The rules of statutory construction include the conjunctive/disjunctive canon which is [t]he doctrine that in a legal instrument, and joins a conjunctive list to combine items, while or joins a disjunctive list to create alternatives.18 In determining what a statute requires, a disjunctive obligation is understood as an alternative obligation, meaning [a]n obligation that can be satisfied in at least two different ways, at the choice of the obligor.19 It is almost impossible to conclude otherwise. Note that the obligor in this case would be the Party. Other authorities recognize a similar approach in interpreting the disjunctive or. While there may be circumstances which call for an interpretation of the words and and or, ordinarily these words are not interchangeable. The terms and and or are often misused in drafting statutes.... The literal meaning of these terms should be followed unless it renders the statute inoperable or the meaning becomes questionable.20 17 New Hampshire v. Maine, 532 U.S. 742, 749 (2001). 18 See Conjunctive/disjunctive canon, Black's Law Dictionary (10th ed. 2014). 19 See Obligation, Blacks Law Dictionary (10th ed. 2014). 20 1A Norman J. Singer, Statutes and Statutory Construction 21.14, at 183-84 (6th ed. 2002); Foutz v. United States, 72 F.3d 802, 805 (10th Cir. 1995) (The word or is not a fertile word which is subject Lt. Governor Cox December 3, 2015 Page 5 of 9 Utah cases have consistently construed [t]he disjunctive or between words in a statute to delineate[] alternative ways a person might trigger the laws applicability.21 In the only case we could find where the Utah Supreme Court was asked to interpret the disjunctive or in the context of Utahs election code, it rejected the interpretation recommended by the State that would have disqualified the Democratic Partys certified replacement candidate on grounds that or is disqualified stood in contrast to the preceding phrase dies, resigns, etc., thus demonstrating the legislatures intent to allow a party to designate a replacement candidate regardless of when the disqualification arose.22 For the same reason, the words either or both in 101(d) and 406(3) clarify what the Party is obligated and not obligated to permit its members to do.23 And contrary to your letters, 406(3) and 406(4) should not be read to impose any obligation on the Party, except that which is, as you say, specifically require[d].24 I would request that you identify any provision in 20A-9-407, 20A-9-408, and 20A-9-409 that the Party is violating by not allowing members to seek its nomination by signature-gathering. Once you accept the position your office has already taken that 101(12)(d) only requires that a QPP permit its members to seek its nomination by either or both of the two methods,25 there is nothing in 407, 408 or 409 obligating that it do more. And forcing the Party to allow members to seek its nomination by to varied constructions.). In Citizens for Responsible Gov't State Political Action Comm. v. Davidson, 236 F.3d 1174, 1190 (10th Cir. 2000), the Tenth Circuit rejected an argument similar to yours in striking down a Colorado campaign finance law, concluding that that the legislature meant what it clearly said, i.e., that all four uses of the word or in 103(11) were intended to signify or not sometimes or and sometimes and. Similarly, in Riddle v. Hickenlooper, 927 F. Supp. 2d 1092, 1098 (D. Colo. 2013) revd, 742 F.3d 922 (10th Cir. 2014), after the Colorado district court upheld the states constitutional amendment setting campaign contribution limits for a primary or a general election, thus indicat[ing] an intent to distinguish between primary and general elections, the Tenth Circuit reversed only after pointing out that the plaintiffs were not challenging the Colorado Constitution but rather were confining their challenge to a Colorado statute that did not set contribution limits based on who has a primary and who doesnt. Riddle, 742 F.3d at 926. 21 State v. Martinez, 896 P.2d 38, 40 (Utah App. 1995) (citing State v. Wight, 765 P.2d 12, 20 (Utah App. 1988) (Garff, J., concurring) as noting that or is [a] disjunctive particle used as a function word to indicate an alternative between different or unlike things) (quoting Blacks Law Dictionary 987 (5th ed. 1979)), and 1A Singer, Sutherland Statutory Construction 21.14); see also State v. Parduhn, 2011 UT 55, 26 (construing law providing indigent legal services for counsel, defense resources, or both as authorizing funding for expert witness even where defendant was represented by private counsel), superseded by statute as stated in State v. Steinly, 2015 UT 15, 345 P.3d 1182; Calhoun v. State Farm Mut. Auto. Ins. Co., 2004 UT 56, 20 (holding that legislatures use of the disjunctive or, as opposed to the conjunction and, clearly mandates that [an insurance] policy need only provide one type of coverage and not both); In re A.M., 2009 UT App 118, 14 (construing statute as giving the state jurisdiction unless either divestment provision applies). 22 Peck v. Monson, 652 P.2d 1325, 1326-27 (Utah 1982). 23 In re City of Bridgeport, 128 B.R. 688, 693 (Bankr. D. Conn. 1991) (The legislative history of 102(5) states that if a party may do (a) or (b), then the party may do either or both. The party is not limited to a mutually exclusive choice between the two alternatives.). 24 November 19, 2015, Letter from Spencer Cox to James Evans, at 2. 25 10/27/2015 Hrg. Tr. at 34:20-24, 35:17-23, 36:8-10. Lt. Governor Cox December 3, 2015 Page 6 of 9 signature-gathering pursuant to 408 creates a number of additional issues based on the unconstitutional burden those provisions impose on the Partys ballot access rights. For example, it is very likely that, for many of the political subdivisions specified in 408(8), the law mandates signature requirements that exceed ratios that the Supreme Court has held to be acceptable generally between of 1-5% of the total population of the Partys registered members in that subdivision.26 And it is well-established that statutes should be construe[d] such that no part or provision will be inoperative or superfluous, void or insignificant, and so that one section will not destroy another.27 3. Choosing Your letters suggest that, to the extent they do not conflict, 101(12)(d) and 406(3) give the right to a QPPs member to choose whether to seek its nomination by convention or signature-gathering. But the fact that 101(12)(d) includes the words member[s] choosing to seek the nomination does not give them the right to dictate to the Party how they will seek it or obligate the Party to recognize the nomination of candidates who do not comply with its rules and procedures. This is especially so where candidates certify that they will comply with the Partys rules and procedures.28 And the language of 406(3), in stating what an individual may only do, is limiting, as opposed to expanding, with respect to any individuals rights. It really could not be otherwise. First, it is significant that 20A-9-401(2) provides that [Part 4] may not be construed to govern or regulate the internal procedures of a registered political party. Section 20A-9-402(2) provides that [i]f there is any conflict between any provision of this part and any other sections in Title 20A, Election Code, this part takes precedence. This suggests that 20A-9-406, 20A-9-407, and 20A-9-408 should not be construed to force the Party to accept candidates who do not comply with its rules, and that, to the extent you feel that 101(12)(d) and 406(3) conflict, it is 406(3), which is limiting as opposed to granting an individuals rights should take precedence. Finally, it is significant that your office previously persuaded the Court that the non-stricken parts of SB54, as applied, would not force the Party to adopt a different candidate selection process.29 Your change of position, now construing SB54 to force the Party to accept signature-gathering candidates under threat of disqualification is not only unfair, but it is contrary to canon of constitutional avoidance, which mandates that when the constitutionality of a statute is assailed, if the statute be reasonably susceptible of two interpretations, by one of which it would 26 Burdick v. Takushi, 504 U.S. 428, 435 (1992) (1%); Norman v. Reed, 502 U.S. 279, 295 (1992) (2%); Jenness v. Fortson, 403 U.S. 431, 440-42 (1971) (5%). 27 Rapela v. Green, 2012 UT 57, 19 (quoting State v. J.M.S. (In re J.M.S.), 2011 UT 75, 22). 28 Bylaws 8.0(A). 29 Greenville County Republican Party Executive Comm. v. Greenville County Election Commn, 2015 WL 1188395, at *3 (4th Cir. Mar. 17, 2015) (explaining that a court could not, as a matter of law, compel the State Party to adopt and utilize any particular partisan nomination procedure); Greenville County Republican Party Executive Comm., 824 F. Supp. 2d at 668 (citing Eu v. San Francisco County Democratic Cent. Committee, 489 U.S. 214, 230-31 (1988)). Utah similarly requires that statutory provisions be read in harmony with other sections not isolation. Monarrez v. Utah Dept of Transp., 2014 UT App 219, 14-16, cert. granted sub nom. Monarrez v. UDOT, 343 P.3d 708 (Utah 2015). Lt. Governor Cox December 3, 2015 Page 7 of 9 be unconstitutional and by the other valid, it is [the courts] plain duty to adopt that construction which will save the statute from constitutional infirmity.30 4. Your Office Should Respect The Partys Rules And Procedures Case law on the issue of candidate selection procedures shows how courts defer to the party in resolving issues like these. In Clegg v. Bennion, the Utah Supreme Court upheld the Republican Partys choice of candidate at convention even though he had been one day late in filing his declaration of candidacy,31 rejecting another persons challenge seeking to have the candidate retroactively disqualified. In part, Clegg reasoned that a ruling disqualifying the partys candidate would disfranchise its delegates in a manner contrary to what is now 20A-9-401(1), which provides that the election code be construed liberally so as to insure full opportunity to become candidates and for voters to express their choice.32 Significantly, Clegg construed the reference to voters in 401(1) as referring to the Partys convention delegates, as they had been selected to represent the Partys members.33 Consistent with Clegg, the Party is simply asking your office to respect its rules and internal procedures.34 The Party requires that its members comply with its Constitution and Bylaws, and those Bylaws require that members choosing to seek its nomination certify that they will comply with the Partys candidate selection process.35 Your office has already acknowledged that it must disqualify the candidacy of any person who does not comply with a QPPs membership requirements.36 And the Supreme Court has recognized how the state has duty to protect the integrity of its political processes from frivolous or fraudulent candidacies.37 Except with a vague reference to SB54s intent, to require that a QPP permit both methods as opposed to either or both, your letters do not explain why you need to override these considerations and force a strained interpretation of the law on the Party. But the Partys process is fair, and it is the product of extensive effort, reflecting the desire of members to vet its candidates and hold them accountable. In this way, the courts holding in Anderson v. Cook is particularly germane.38 30 Skilling v. United States, 561 U.S. 358, 423 (2010) (quoting United States ex rel. Attorney General v. Delaware & Hudson Co., 213 U.S. 366, 407 (1909)); see also United States v. Rumely, 345 U.S. 41, 45 (1953) (describing the canon as decisive in the choice of fair alternatives). 31 Clegg v. Bennion, 247 P.2d 614, 616 (1952). 32 Id. at 615-16 (quoting then-Utah Code Ann. 25-3-9 (1943)). 33 Id. 34 See also Duke v. Massey, 87 F.3d 1226, 1232-33 (11th Cir. 1996) (upholding a partys right to define itself in a way that excluded a candidate from its presidential primary ballot); Swanson v. Pitt, 330 F. Supp. 2d 1269, 1275-79 (M.D. Ala. 2004) (deferring to a partys interpretation of its bylaws and associational rights to disqualify a candidate from running as that partys candidate); Jolivette v. Husted, 694 F.3d 760, 768-70 (6th Cir. 2012) (upholding the disqualification of an independent candidate from the general election ballot based on a finding that the claim on that candidates declaration of candidacy to be unaffiliated was not made in good faith); Van Susteren v. Jones, 331 F.3d 1024, 1025 (9th Cir. 2003) (upholding a states disaffiliation law to deny a candidate access to a partys primary ballot). 35 Const. Art. I C; Bylaws 8.0(A). 36 Thomas Tr. at 197:25-198:23. 37 Bullock v. Carter, 405 U.S. 134, 145 (1972). 38 Anderson v. Cook, 130 P.2d 278 (1942). Lt. Governor Cox December 3, 2015 Page 8 of 9 There, the Utah Supreme Court rejected an individuals attempt to force himself on the general election ballot as the Partys nominee without having complied with the Partys candidate selection procedure, which at the time included a sworn affirmation as to certain facts with respect to [the candidates] political beliefs and a forty-day vetting process before the partys primary.39 The Court observed: Any candidate so filing, or accepting a filing, knows that for forty days before the primary election he is under the spotlight of political scrutiny, and if he cannot stand the test and pass the examination he will be eliminated by the rank and file of the party. There cannot be forced down the throats of the party membership a candidate they do not want.40 In other words, even if you assume that SB54 gives an individual the right to appear on the ballot, it cannot give that individual the right to appear on the ballot as the Republican Partys candidate, in violation of the Partys rules.41 The Supreme Court recognizes essentially two lines of ballot access cases: one involving classifications based on wealth and the other involving burdens on new or small political parties or independent candidates.42 Neither line recognizes any right on the part of an individual to force a QPP to accept that individuals preference in how he or she would prefer to seek the partys nomination in violation of the partys candidate selection procedures.43 To the contrary, the Court has long-recognized the special protection afforded to a political partys candidate selection process: [t]he 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.44 Finally, I would ask that you reconsider your position based on Cousins v. Wigoda, and other authority recognizing that states should generally defer to a partys autonomy when it comes to candidate selection.45 Cousins emerged out of a battle between two groups of delegates claiming to represent Chicago at the 1972 Democratic National Convention.46 On the one hand, the Wigoda delegates asserted their claim based on the fact that they had been elected in their states Democratic primary, many by overwhelming margins. The Cousins delegates based their claim on the fact that the Wigoda delegates had failed to comply with their partys new slate-making and affirmative action guidelines. The partys convention delegates chose to seat the Cousins 39 Id. at 282-83. 40 Id. at 283. 41 Clements v. Fashing, 457 U.S. 957, 965 (1982). 42 Id. at 964-65. 43 And in those cases dealing with new or small political parties, the issue is whether ballot access requirements burden the parties rights (of association). Id. at 965. 44 California Democratic Party v. Jones, 530 U.S. 567, 575 (2000) (citations omitted). 45 Cousins v. Wigoda, 419 U.S. 477, 489 (1975); see also Democratic Party of United States v. Wisconsin, 450 U.S. 107 (1981); Tashjian v. Republican Party of Connecticut, 479 U.S. 208 (1986); Eu, 489 U.S. 214 (1989); Jones, 530 U.S. at 575. 46 Cousins, 419 U.S. at 479-81. Lt. Governor Cox December 3, 2015 Page 9 of 9 group, and the Wigoda delegates brought a legal action on grounds that was contrary to Illinois law at the time mandating that a partys national convention delegates be selected by primary.47 The Court sided with the Cousins delegates, ruling that the party and its adherents enjoy a constitutionally protected right of association that overrode the states interest in mandating that parties comply with its electoral processes.48 And the Court rejected the argument made by the Wigoda delegates based on the integrity of [the states] electoral processes and the right of its citizens under the State and Federal Constitutions to effective suffrage.49 In this, Cousins is also consistent with the Utah Supreme Courts decision in Clegg, recognizing that, in fact, suffrage was exercised because the partys convention delegates had voted to seat the Cousins delegates.50 In asking that your office defer to the Partys internal rules and candidate selection procedures, we are similarly asking that you respect the votes and determinations made by the Partys delegates to amend its Constitution and Bylaws as set forth above. Conclusion We are prepared to take this dispute immediately back to Court. I wanted to reach out in advance because I had understood your desire to approach the Court jointly to seek a resolution on an expedited basis, perhaps even asking the Court to certify a question for the Utah Supreme Court under Utah Code Ann. 78A-3-102(1), as appropriate.51 If your position has not changed, please respond with any suggestions that you have about how we may jointly proceed with litigation. Thank you in advance for your time and consideration. Sincerely, James Evans, Chairman Utah Republican Party 47 Id. at 481-83. 48 Id. at 487. 49 Id. at 489. 50 Id. at 489-91. 51 See, e.g., Ray v. Wal-Mart Stores, Inc., No. 1:11-CV-104, 2013 WL 5572731, at *9-*11 (D. Utah Oct. 9, 2013); Carranza v. United States, No. 2:07CV291DAK, 2009 WL 1392839, at *4 (D. Utah May 14, 2009).