I had the opportunity to attend the oral argument of the Utah Republican Party in the 10th Circuit Court of Appeals in Denver, on the 25th of September 2017. The Chair of the UTGOP was there along with our attorney, Marcus Mumford. I took extensive notes and made several observations during the 45-minute session. I posted my notes to social media the following day. The Grassroots Republic, of which I am the Spokesperson, also sent out a press release to members of the Utah News Media. No one else made such notes or observations, yet, the media all but ignored my report, instead using a report from the Associated Press that didn’t bother to give any detail, especially the detail I wrote about first hand, which I believe shows that the Appeals court judges are most definitely leaning in favor of the UTGOP.
To me, this is another example of how the REAL NEWS is being overshadowed by the liberal, agenda-driven media. I believe that as you read my notes you will be left with the same impression I was, that these judges understand that SB54 was a burden on the UTGOP, that it weakens and divides the Party and that it calls into question the right of Free Speech, Right of Association and Right of Assembly.
THE QUESTION IS, WILL THEY RULE FOR THE PLAINTIFF ALL OR IN PART, OR WILL THEY UPHOLD THE CURRENT LAW?
My detailed notes are as follows,
September 25, 2017,
Denver, Colorado THE UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT
I had the opportunity to attend the oral argument today in Denver. I tried, the best I could, to take extensive notes. I USED QUOTES only for comments I wrote down word for word.
The following is my overview of the tone and SOME of the discussion that I believe was most important.
**THIS IS NOT A WORD FOR WORD TRANSCRIPT.**
UTAH REPUBLICAN PARTY, Plaintiff-Appellant, UTAH DEMOCRATIC PARTY, Intervenor Plaintiff and Cross-Appellant, v. SPENCER J. COX, in his official capacity as Lieutenant Governor of Utah, Defendant-Appellee.
Marcus R. Mumford Attorney for Appellant
Tyler R. Green Attorney for Defendant-Appellee
The three judges that represented the 10th Circuit were Chief Judge Timothy M. Tymkovich, Senior Judge David M. Ebel, and Judge Carlos F. Lucero
The hearing started at 9:00 AM and lasted about 45 minutes.
The Utah Republican Party and the Utah Democrat Party shared their time for the opening. Marcus Mumford said that both the UTGOP and the Utah Democrat party were going to work together in the opening statements. Judge Lucero said, “Just remember, Patriots make strange bedfellows,” Everyone chuckled, and the hearing began.
Opening Statement from Marcus Mumford, attorney for the UTGOP: “The Supreme Court has stated in no uncertain terms that “[a] political party has a First Amendment right … to choose a candidate-selection process that will in its view produce the nominee who best represents its political platform.” New York State Bd. of Elections v. Lopez Torres, 552 U.S. 196, 202-03 (2008).
The judges did not ask many questions of Mumford. Mumford explained that the party held a caucus night where thousands of Utahans met in their precincts, had an opening prayer, a pledge and read party documents. That was the bulk of his comments.
(I believe Mumford did well responding to the questions of the judges. However, I believe the judges ask more questions to the state attorney.)
Afterward, the attorney for The Utah Democrat party stood. Within moments he began complaining that the UTGOP had not changed its bylaws to conform with SB54 and did not qualify as a Qualified Political Party (QPP)
One of the judges asked, “Do you want the Republican Party to be A Registered Political party (RPP)? The attorney responded, “We just want the party to abide by the state law. It is not fair that the other Parties have changed their governing documents to comply with SB54, but the UTGOP has not.”
Judge Lucero then said, “So much for the Kumbaya between the two of you.” Everyone laughed.
Chief Justice Tymkovich commented in response to the attorney for the Utah Democrat Party, the UTGOP should be able to follow its party rules. He said that SB54 was forcing the party to go against its rules.
Afterward, Tyler R. Green, Attorney for the State of Utah spoke.
Chief Justice Tymkovich asked Mr. Green if CMV was targeted at the Utah Republican Party. The State attorney said that it was targeted to make the path to the ballot more democratic.
Chief Justice Tymkovich then said the Party can take full control of its membership and determine who qualifies to be its candidates.
He then asked, “Is there a case that shows a state can impose a Primary on a party? Is it fair to say there is no case?”
The States attorney, Tyler R. Green acknowledged that there was no such case.
Chief Justice Tymkovich when discussing the percentage of signatures required for candidates in different districts said, “getting signatures from 57% of voters is eyepopping. It seems contrary to your assertion to allow more candidates on the ballot”
Judge Lucero later said, “So there is no evidence, case law supporting it?”
Chief Justice Tymkovich said, “Is it fair to say that you have based your entire case on the LaRouche case and you win or lose on the basis of LaRouche?”
The State Attorney, Tyler R. Green acknowledge that fact simply by saying, “Yes, your honor.”
Judge Lucero asked if SB54 strengthened or weakened the party?
The State Attorney, Tyler R. Green said it allows more people to get on the ballot.
The judge added that it impacts the Party’s Right to Associate.
He then said in reference to a candidate who chooses to ignore the caucus and go straight to the primary ballot,
“A candidate could snub the Party.”
The State Attorney, Tyler R. Green replied that a candidate must declare his party affiliation.
*****At this moment, Chief Justice Tymkovich made the central point of the entire argument that UTGOP has against SB54 when he said,
“What you are saying is that candidates could unilaterally declare, so we could have a Bernie Sanders say, “I, in order to petition on the ballot of Republicans, I hereby declare, I am a Republican,” and get his name on the ballot? He could be a Republican In Name Only (RINO), and the Republican Party has no ability to say, “Hey, wait a minute, you’re not a Republican at all?”
This comment seemed to change the entire discussion when the judges realized that SB54, and the upcoming CMV2 (Count My Vote initiative) made it possible for candidates to get on the Republican ballot without actually being Republican, and the Party has no legal right to question or prohibit such a candidate from infiltrating the Party. Tyler R. Green said the candidate would need to get 28,000 Republican signatures to get his name on the ballot. But the judges didn’t seem to accept that such a thing could not happen and cause harm to the party.
AT THIS POINT TYLER R. GREEN TOLD THE JUDGES THAT HIS TIME WAS UP. TO ME, IT SEEMED LIKE MR. GREEN DID NOT WANT TO ANSWER ANY MORE QUESTIONS THAT APPEARED TO WEAKEN HIS CASE. BUT CHIEF JUSTICE TYMKOVICH SAID, “It’s Okay, we gave the other attorneys extra time and we’ll do the same for you because we have more questions.”
Chief Justice Tymkovich added, in reference to the signature path, “It splits the Party against itself.”
Justice Lucero then added: “That is hugely divisive. How does that not weaken the (Utah Republican) Party?
Tyler R. Green somewhat unconvincingly reiterated the States position that SB54 increases ballot access.
The judges thanked the attorneys and declared that the oral argument hearing had come to an end.
As a witness to the proceeding today, it seemed to me that the judges were very sympathetic to the Utah Republican party’s argument that SB54 is harmful to the party. And they made it clear to the State that their entire case hinges on one case law.
The justices alluded to freedoms, free speech, and right of association. They spent more time asking questions of the state than they did of the Plaintiff, the Utah Republican party than they did the defendant, the State of Utah.
Perhaps this is to be expected since the Plaintiff is claiming damage, the judges what to ascertain the facts to determine if the Plaintiff’s complaint can be substantiated.
In the end, I believe this case is simply a case of Freedom. It goes well beyond the Utah Republican Party, and any other party in the state.
This is a case that questions the right of a government, in this case, the state government, to infringe on the constitutional rights of a private organization.
It questions the right of the State of Utah to dictate to a private organization, specifically, the Utah Republican Party, the path it must use to advance its candidates to the ballot.
If SB54 is allowed to stand, it sets a precedence, new case law, that can be used against another private organization, a club, or even a Church, if the State were to enact a law that dictates the path that one of these organizations must choose for advancing members to leadership positions in its organization.
This is a case of FREEDOM, AND FREEDOM IS ALWAYS WORTH FIGHTING FOR!
Monday, September 25, 2017
Phill Wright is the recent past Vice Chair of the Utah Republican Party, Chair of the Utah Delegation to the 2016 National RNC Convention, and Member of the Utah Republican Party State Central Committee. He has also been a state and county delegate, former Chair and Vice Chair of the Davis County Republican Party, Chair of the Davis County Republican Party Ethics Committee. He is a published author and motivational speaker. He has received awards for television and radio productions. He has been married 35 years, is the father of seven children and eight grandchildren. He and his wife Shaun, live in Bountiful, Utah.