Garbett v. Herbert

458 F.Supp.3d 1328

Jan GARBETT, Plaintiff,

v.Gary HERBERT, in his official capacity as Governor of Utah, and Spencer Cox, in his official capacity as Lieutenant Governor of Utah, Defendants.

2:20-cv-245-RJS

United States District Court, D. Utah.

Signed April 29, 2020

Michael J. Teter, Teter & Vu LLC, Margaret B. Vu, Snow Christensen & Martineau, Salt Lake City, UT, for Plaintiff.

MEMORANDUM DECISION AND ORDER GRANTING IN PART PLAINTIFF'S MOTION FOR A PRELIMINARY INJUNCTION

ROBERT J. SHELBY, United States Chief District Judge

Plaintiff Jan Garbett is seeking the Republican Party nomination for Utah's 2020 race for governor. The first step is getting on the Republican primary ballot. There are two ways to do that under Utah law. One way is selection by state party delegates at the Utah Republican Party's convention. But because she classifies herself as a "Trump-skeptical" Republican and state party delegates ordinarily gravitate toward more conservative candidates, Garbett hesitated to pursue the convention route. And when the Utah Republican Party announced it would use the same state delegates from 2018 rather than selecting new delegates for the 2020 convention—thereby precluding Garbett from organizing her own supporters to become delegates—Garbett considered the convention route impossible.

That left her the second option—obtaining and submitting to Lieutenant Governor Spencer Cox 28,000 signatures from registered Utah Republicans by April 13, 2020. Garbett was ostensibly on track to reach the signature threshold when a novel coronavirus (COVID-19) quickly developed into a global pandemic and dramatically changed everyday life. After nearly all public events in Utah were either postponed or cancelled as a result of the outbreak, coupled with Governor Herbert's eventual "Stay Safe, Stay Home" directive, Garbett was forced to cease almost all her signature gathering efforts. When the April 13 deadline arrived, Garbett had obtained only about 21,000 of the required 28,000 signatures. But for the State's directives and refusal to modify the signature gathering requirements, Garbett argues she easily would have obtained enough signatures to appear on the primary ballot. When the Lieutenant Governor's Office refused to accept her signatures, Garbett filed this lawsuit.

Now before the court is Garbett's Motion for Preliminary Injunction, in which she argues the State's ballot access framework—in conjunction with the State's emergency measures to respond to the COVID-19 crisis—violates her associational rights under the First Amendment and her right to equal protection under the Fourteenth Amendment. She asks the court to direct Lieutenant Governor Cox to include her on the ballot or to require the state to give her additional time to obtain signatures after state and local governments lift their stay at home orders. Defendants Governor Herbert and Lieutenant Governor Cox (collectively, the State) contend the lawful enforcement of Utah's election laws does not violate any of Garbett's constitutional rights, even in the midst of a pandemic. Having considered and applied the relevant standards, the court GRANTS IN PART Garbett's Motion.

BACKGROUND

The following facts are drawn from the parties’ papers, the evidence submitted in advance of the injunction hearing, and from the representations made during oral argument. These facts are largely undisputed by the parties.¹

I. Garbett's Decision to Run for Governor of Utah and Ensuing Efforts to Collect Signatures

Garbett decided to run for governor as the Republican Party's nominee in February 2020.² To obtain a place on the Republican Party primary ballot, Garbett could pursue two nonexclusive routes. She could be selected by state delegates at the Utah Republican Party's convention (the Convention Route), submit to the lieutenant governor 28,000 signatures of registered Republican voters (the Signature-Gathering Route), or pursue both paths.³ At the time candidates declare their candidacy, they must indicate whether they are seeking the nomination through the Convention Route, the Signature-Gathering Route, or both.⁴

Because Garbett classifies herself as a "Trump-skeptical" candidate, she worried the Convention Route might not be a viable option.⁵ Garbett ultimately decided her most likely path to getting on the primary ballot was through the Signature-Gathering Route.⁶ To qualify through that path, Garbett had until April 13, 2020, to collect the required signatures.⁷

Before settling on that route, however, Garbett sought to ensure she had time to collect the signatures before the April 13 deadline.⁸ After soliciting bids from various signature-gathering firms, she ultimately received two separate proposals from I&RCMS and Zero Week.⁹ Each promised it could independently gather 35,000 signatures before the deadline.¹⁰ Confident she could comfortably meet the 28,000-signature threshold, Garbett pressed forward with her gubernatorial campaign.¹¹

Initially, though Garbett doubted she could get on the ballot through the Convention Route, she left open the possibility of pursuing that path.¹² However, the Utah Republican Party later announced that, in view of the COVID-19 pandemic, it would not hold its precinct caucuses and that, instead of choosing new state delegates for the 2020 convention, it would use the state delegates previously selected in 2018.¹³ Additionally, the Party 2020 convention was changed from an in-person to a virtual event.¹⁴ Recognizing she would be unable to organize her own supporters to become state delegates, Garbett believed securing the nomination through the Convention Route now was nearly impossible.¹⁵ So when she submitted her formal declaration of candidacy, she indicated she would exclusively pursue the Signature-Gathering Route.¹⁶

On February 17, Garbett contracted with I&RCMS to gather 35,000 signatures by April 8.¹⁷ She also engaged Zero Week to collect an additional 15,000 signatures in Utah County alone, for a total of 50,000 anticipated signatures.¹⁸ I&RCMS began its signature gathering efforts on February 24, the same day Garbett filed with the Lieutenant Governor's Office notice of her intent to gather signatures.¹⁹ Zero Week did not begin collecting signatures until March 11.²⁰

Both firms relied principally on canvassing to collect signatures, which is considered the most cost-effective and reliable method.²¹ Canvassers use voter data to target Republican voters and then knock on their doors to request signatures.²² In addition to canvassing, I&RCMS sought to collect signatures through public signature gathering—i.e. , soliciting signatures in public locations outside of sporting events, grocery stores, and other high pedestrian traffic areas.²³

II. The COVID-19 Pandemic's Impact on Garbett's Signature Gathering

As I&RCMS and Zero Week ramped up operations in early-to-mid March, public and private action to reduce transmission of COVID-19 began to disrupt their signature-gathering efforts.²⁴ By March 6, fears of a looming public health crisis due to COVID-19 led Governor Herbert to declare a state of emergency in Utah (Executive Order 2020-1).²⁵ Soon after on March 11, the National Basketball Association postponed its season, and the next day the Governor requested residents to limit gatherings to no more than 100 people.²⁶

On March 16, Zero Week informed Garbett it was suspending signature gathering efforts and instructing its employees to stay at home.²⁷ As a result, Garbett ended her contract with Zero Week, and I&RCMS took over operations for Utah County.²⁸ By March 25, I&RCMS had hired nearly 200 people to collect signatures for Garbett.²⁹

On March 27, Governor Herbert issued a statewide "Stay safe, stay home" directive (Stay Home Directive) asking people to stay home and limit social interaction.³⁰ Although Garbett recognized the Stay Home Directive was not an order, she decided to end her campaign's public outreach efforts on March 28 to help limit transmission of COVID-19.³¹ In the last two weeks of signature gathering, the campaign's rejection rate, i.e. , the rate at which people refused to sign a petition, increased from twenty to fifty percent.³² I&RCMS attributed this to people's fear of contracting COVID-19.³³ Garbett had collected approximately 19,000 signatures by the time she ended her canvassing efforts on March 28.³⁴

III. Garbett's Requests to the State for Relief and Changes to Utah's Election Procedure

While Garbett's signature-gathering efforts were ongoing, Garbett began contacting state officials about the COVID-19 pandemic's impact on her campaign.³⁵ On March 11, she delivered a letter to the Lieutenant Governor's Office requesting modifications to the signature-gathering requirements.³⁶ Later that day she received a response from Justin Lee, the Director of Elections in the Office of the Lieutenant Governor, asserting that the Lieutenant Governor lacked the authority to modify signature-gathering requirements.³⁷

The following day on March 12, however, Governor Herbert issued Executive Order 2020-2, suspending two provisions of Utah election law. The Order relieved prospective candidates of the requirement to file in-person declarations of candidacy.³⁸

On March 17, Garbett and three other candidates for elected office (who were also gathering signatures) met with Lee to again request that the Governor take steps to lower the signature requirement threshold.³⁹ Specifically, they asked that the Governor lower the primary ballot qualification requirements to ten percent of normal levels.⁴⁰ Lee told the candidates at the meeting that the Lieutenant Governor's Office lacked the authority to implement the changes they were requesting.⁴¹

Finally, on March 23, Garbett's attorneys sent a letter to Governor Herbert, Lieutenant Governor Cox, and Lee again asking for relief from signature-gathering requirements.⁴² The Solicitor General in the Utah Attorney General's Office responded to the letter on March 26, directing...