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Judge now tilting toward state in election law battle with Utah GOP

Representatives listen during the closing night of the legislature in Salt Lake City Thursday, March 10, 2016.
Representatives listen during the closing night of the legislature in Salt Lake City Thursday, March 10, 2016.
Jeffrey D. Allred, Deseret News

SALT LAKE CITY — A federal judge appears to have changed his thinking that the signature gathering requirements in Utah's controversial election law might be unconstitutional.

In an email to attorneys in the case, U.S. District Judge David Nuffer wrote that written arguments from the Utah Lieutenant Governor's Office and the Utah Democratic Party were persuasive in defending the petition path to the primary election ballot.

Having a path through the state's convention system might be the deciding factor if signature collecting requirements aren't "wholly irrational," he wrote.

At a hearing Monday, assistant attorney general David Wolf argued that if there's "reasonable" access to the ballot through the convention, providing other access is just that much better.

"It's frosting on the cake. It's extra access to the ballot," he said after the hearing. "I guess the Legislature could have a 99 percent requirement, and that would still be constitutional. … Not that I'm suggesting that is good policy."

Nuffer earlier this month issued an opinion that the law's signature gathering thresholds for state House and Senate districts are too high and might be unconstitutional.

House candidates must collect 1,000 signatures from voters in their districts and Senate candidates 2,000 to get on the primary election ballot. Only registered Republicans may sign petitions for GOP candidates.

Nuffer found signature gathering percentage requirements in House district races range from 7.1 percent to 57.2 percent, and Senate district races range from 6.2 percent to 30.8 percent. He said anything above 5 percent might be unconstitutional.

Wolf said 57 percent in one district certainly exceeds that limit. "But that's not our case. We don't have one path to the ballot," he said.

Utah Republican Party attorney Christ Troupis contends that the Legislature failed to tie the number of required signatures to the number of eligible voters in the districts, making them disparate.

"That's what is irrational," he told the judge. "If the Legislature had kept this within constitutional limits, we wouldn't be here."

Nuffer said regardless of the signature collecting threshold, candidates would presumably have a fair shot at the ballot through the convention.

"But the question is can you have another system that is irrational and therefore unconstitutional?" said Utah GOP Chairman James Evans. "Is that really a choice? Both your choices have to be constitutional."

Wolf said 148 candidates are gathering signatures, and about 58 have already turned in completed petitions.

"Candidates have jumped over this hurdle time and time again," he said.

The election law approved by lawmakers two years ago, known as SB54, allows candidates to gather signatures, go through the state's caucus and convention system or both to get on the primary ballot.

The Utah GOP sued the state to preserve the caucus and convention as the only way to secure a spot on the ballot.

Nuffer set another hearing for April 15 but said he anticipates issuing an opinion on the ballot access issue before then.

Meantime, the Utah Supreme Court has scheduled an April 4 hearing on other aspects of the lawsuit, including whether the candidate or a political party gets to decide which path to pursue to get on the ballot.


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