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Utah GOP continues fight against election law upheld in federal appeals court

SHARE Utah GOP continues fight against election law upheld in federal appeals court

SALT LAKE CITY — Republicans announced Monday they've hired an attorney to challenge last month's decision by a federal appeals court upholding the controversial election law that gives candidates an alternative path to the primary ballot.

Gene Schaerr, who represented Utah in the state's unsuccessful effort to defend its constitutional ban on same-sex marriage, has been retained by the Utah Republican Party Constitutional Defense Committee, member Don Guymon said Monday.

He said an "en banc" hearing by the entire 10th Circuit Court of Appeals will be requested to reconsider the court's 2-1 decision on March 20 upholding the law known as SB54.

Guymon said the author of the dissenting opinion, Chief Judge Timothy M. Tymkovich, "made a very strong case for the Utah Republican Party." Tymkovich wrote that "such change is not for legislatures to impose."

While Guymon acknowledged "there's no guarantees with any litigation," he said Republicans who believe the law violates their First Amendment rights "were very pleased with the stand" taken by the chief judge.

The other judges found the law "strikes an appropriate balance" between the state's role in managing elections and letting the GOP to form associations as protected by the First Amendment.

The deadline for petitioning for the hearing is Tuesday, but an extension was granted Monday giving the party until April 18 to file its request.

The cost of the challenge is being picked up by Entrata CEO Dave Bateman, he said, declining to detail what Schaerr is charging. Bateman had previously agreed to pick up the legal costs of the party's initial appeal to the 10th Circuit.

The party members could have sought to have the case heard by the U.S. Supreme Court and would still be able to if they don't get the result they want from the federal appeals court.

State Sen. Todd Weiler, R-Woods Cross, an attorney, said requests for en banc hearings are "very rarely granted," only in about 0.3 percent of the decisions made by the 10th Circuit.

"I will be shocked if an en banc review is granted," Weiler said, although he said there are arguments that can be made in favor of the court taking another look at the case, including the dissent by the chief judge.

He said a decision will likely be made within a couple of months once the petition is filed. Weiler said while he supported waiting for the 10th Circuit to rule on the party's appeal, it's time to move on.

"We need to start a healing process," Weiler said, noting 2018 is an election year. "At this point, we ought to be focused on getting Republicans elected rather than pick at scabs and further divide the party."

State GOP Chairman Rob Anderson, who tried to end the lawsuit last year but was overruled by the party's State Central Committee, said the decision to seek a review wasn't a surprise but means "this internal conflict will remain."

The 2014 law permits candidates to bypass a political party's traditional caucus and convention system for selecting nominees by collecting voter signatures to guarantee a place on the primary ballot.

The Utah GOP has been deeply divided over the law, passed by the Republican-dominated Legislature as a compromise with backers of the Count My Vote ballot initiative that would have replaced the traditional system with a direct primary.

Rich McKeown, executive chairman of the new Count My Vote ballot initiative that would keep SB54 in place with some modifications, said he believes the en banc hearing "is probably a long shot."

If opponents of SB54 "feel they've got a chance, that's great," he said, noting the law has also been upheld by the Utah Supreme Court. "We feel quite secure in that the courts have already decided on this matter."