Count my vote, part deux: The saga continues
Image: Robert Cutts

Maybe it’s the effect of the dog days of summer, but little bits of floating news that would seem too insignificant to mean much are catching my eye. For instance, this:

Late last week, the Constitution Party of Utah asked U.S. District Judge David Nuffer to appoint a mediator to settle the dispute over SB 54, otherwise known as the Count My Vote lawsuit. The story gets a little convoluted, so the following is a chronology of what happened to bring us to the Constitution Party’s latest action on this issue.

In the summer of 2013, leaders of the Count My Vote initiative drive, headed by former GOP Governor Mike Leavitt, started raising funds to get Count My Vote on the ballot in 2014. To simplify a complex issue, just think of Count My Vote as an effort to replace the Utah Caucus system with a process whereby candidates would be nominated through a direct vote primary process.

The Utah Republican Party was split on the initiative drive. Some saw the wisdom of opening the process to more candidates, while others argued that the Count My Vote initiative robbed all political parties of their right to decide who was—and was not—a member of their Party and therefore qualified to carry their banner into the general election. Most Democrats supported the initiative, noting that it would take fewer votes for names of their Party members to make it to the general ballot.

Fast forward to March of 2014. The echoes of the wrangling back and forth among the Count My Vote initiative folks and both factions of the Utah Republican Party are still ringing through the halls of the state house. Enter Sen. Curtis Bramble (R-Provo) waving a bill of compromise in his hand. SB 54 to the rescue.

SB 54 would have left the caucus system intact, but candidates of either political party could secure a place on the party primary ballot by gathering signatures. Another key aspect of the bill was that a direct primary would be the default for a political party unless it became a “qualified political party” by including three provisions in its nominating process:

– Allow an opportunity for delegates to vote absentee at the party convention, or have an alternate delegate process
– Allow unaffiliated voters to cast votes in the party’s primary election
– Allow a candidate to get on primary ballot by obtaining signatures.

Many mainstream Republicans rebelled, speaking out against the compromise. Rep. Michael Noel (R-Kanab) even worried that the primary system would be turned over to the “low-information” voter.

In a flash, given that the pace of legislative movement is sometimes indistinguishable from that of a desert tortoise at rest, the bill passed both houses and was signed by Gov. Herbert in March of 2014.

Now, fast forward again. In December of 2014, the Utah Republican Party filed a lawsuit arguing that SB 54 violated their rights to determine who was and who was not in the party fold.

Finally, as a holiday gift surprise on Christmas Eve, the Constitution Party of Utah asked that they be included as a co-plaintiff in the lawsuit.

With that, it gets interesting. In April 2015, Judge Nuffer refused to block the implementation of the compromise, reasoning that the he could not rule until the parties attempted to implement the law and had evidence of harm. With no injunctive action in sight, the parties, including both the Utah Republican Party and the Constitution Party were stymied.

That is, until last week when the Constitution Party charged up to Judge Nuffer’s court and suggested that what was really needed was a good mediator to help everyone get along. And Nuffer agreed. He told the parties (the state and the Republican Party) to begin meeting for talks on the framework for mediation and settlement.

So did the Constitution Party save the day, and if so, why and how?

I would guess that the Utah Republican Party’s answer to that question would be something like ‘Who?’ Although they were co-plaintiffs in the original lawsuit, a spokesman for the Utah Republicans disavowed any prior knowledge of the Constitution Party’s suggested solution. The Constitution Party, however, had managed to secure for itself a seat at the table.

It remains to be seen in the coming months if mediation can get all parties to that table in a successful effort to reach compromise.

However—and this is the dog days mote that caught my eye—the Constitution Party? Why do they care?

One need go no further than their website and official blog for answers. First, of course, the Constitution Party has claimed that they were prepared to file a lawsuit in the fall against SB 54 because it was clear that the Utah Republican Party was split on the issue. The fact that they waited until Christmas Eve to request co-plaintiff status could have been simple courtesy or a strategic move to let the party with the deeper pockets take the lead. Either scenario makes sense to me. After all, the Republican Party of Utah is not just the majority party; it is the elephant in the playroom.

The Constitution Party also makes an argument about SB 54 compromise violating several tenets of the Constitution which they revere. It argues that Count My Vote—and by extension SB 54—limits their rights to free association and private organizations as guaranteed by the First Amendment. They argue that if a candidate could advance to the ballot through a direct election primary, that candidate could then call himself (remember this is Utah, it would likely be a ‘him’) a member of whatever party he wanted and use that party’s trademark, which they say is another violation of the Constitution.

So far, so good. I might not agree, but I understand.

There is a point, however, where the Constitution Party logic derails, or at least jumps the track from the Utah GOP engine. The Constitution Party worries aloud that SB 54 might just allow people with lots of money to buy their way onto ballots. These big spenders could fund their own petition drives, circumventing the entire caucus system process.

If this argument sounds vaguely familiar, it should. This is almost exactly the rap that is being hurled at the Koch brothers, who seem poised to toss the Republican presidential nominating process to their chosen candidate via the flex of their financial and fundraising muscle.

Buying elections. Not a pretty idea.

So while the Constitution Party and the Utah GOP are co-plaintiffs against the compromise, the Constitution Party looks askance at its political bedfellows. Yes, both agree the compromise is a bad thing. Yes, both allege it violates constitutional principles. Both worry about the harm it could cause to their own parties. But the Constitution Party goes one step further, worrying publicly that the election process will become the witless play toy of the highest bidder.

How this differs significantly from the way the caucus system works now for us is the subject for another column.

Let’s just say, in the dog days of the summer of 2015, the Constitution Party of Utah made it interesting.

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