United Utah Party v. Cox, Case No. 2:17–cv–00655–DN–PMW

268 F.Supp.3d 1227

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.

Case No. 2:17–cv–00655–DN–PMW

United States District Court, D. Utah, Central Division.

Signed August 2, 2017

Cheylynn Hayman, Parr Brown Gee & Loveless, Salt Lake City, UT, Bryan L. Sells, The Law Office of Bryan L. Sells LLC, Atlanta, GA, for Plaintiffs.

Andrew Dymek, David N. Wolf, Thomas D. Roberts, Utah Attorney General's Office, Salt Lake City, UT, for Defendant.

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

David Nuffer, United States District Judge

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 issued⁴ 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 ...––––1233

The Law of Congressional Special Elections ...1233

The Lt. Governor Oversees Elections and Party Registration. ...1234

Utah's Election Code Provides a Process for New Political Parties to Register. ...1234

The Lt. Governor Takes Many Actions Related to Primary Elections When a New Party is Certified. ...1236

Utah's Election Code Provides Processes for Candidate Access to the Regular Primary Election Ballot. ...1236

Utah's Election Code Provides Processes for Candidate Access to the Regular General Election Ballot. ...1237

Representative Chaffetz's Resignation Necessitated a Special Election.... 1237

The Lt. Governor Established Procedures for a Congressional Special Election.... 1238

Rationale for Lt. Governor's May 19 Order ...1239

The UUP Seeks to Organize and Participate in the Special Election. ...1240

Actions Taken Furthering Jim Bennett's Candidacy....1242

Summary of UUP and Bennett Actions ...1242

Lt. Governor Procedures—Special Primary Election to Special General Election ...1244

Only the Lt. Governor's Procedures Exclude New Parties from the Special Election....1245

The Election Office Review of UUP's Petition Was Unnecessarily Delayed....1245

Elimination of Election Office Delays Would Have Allowed Full Registration of the UUP Before the Special Primary Election....1246

The Lt. Governor Did Not Consider Participation of New Parties in the Special Election ...1248

The State Faces No Significant Burdens in Including the UUP and Its Candidate in the Special General Election....1248

Procedural Standard ...1248

Discussion ...1249

A Flexible Legal Standard Applies to Constitutional Challenges to Election Laws. ...1249

The Special Election Procedures Severely Burden Plaintiffs' Constitutional Rights....1250

The Character of the Asserted Injury: The Special Election Procedures Violate Plaintiffs' First and Fourteenth Amendments Rights. ...1250

The Magnitude of the Asserted Injury: The Special Election Procedures Severely Burden Plaintiffs' Rights. ...1252

The Interests Asserted by the Lt. Governor Do Not Justify or Necessitate a Complete Bar to New Political Party Participation in the Special Election....1253

The State Interests Identified by the Lt. Governor Are Insufficient. ...1253

The Lt. Governor Could Have Accommodated Formation of a New Political Party Before the Special Primary Election....1256

The Facts Demonstrate the UUP and its Candidate Are Ready to Participate in the Special Election ...1258

State Interests Do Not Justify Exclusion of the UUP from the Special Election. ...1259

Plaintiffs Will Suffer Irreparable Harm in the Absence of Preliminary Relief. ............1259

The Balance of Equities Is Strongly in Plaintiffs' Favor....1259

The Injunction Is in the Public Interest....1260

No Bond Is Required. ...1260

Order and Preliminary Injunction ...1260

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 Complaint⁸ and the statements and exhibits presented in the briefs submitted in support of⁹ and in opposition to¹⁰ 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...