Judge's order could strike down controversial Utah election law

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SALT LAKE CITY — State lawmakers might lower signature gathering thresholds in Utah's controversial new election law after a federal judge signaled he might strike them down because they're too high.

U.S. District Judge David Nuffer on Friday found that the signature gathering requirements for House and Senate candidates to get on the Republican primary election ballot might be unconstitutional.

"Stay tuned," said Sen. Curt Bramble, R-Provo, who sponsored the legislation, SB54, that created the law two years ago.

"I believe there needs to be clarity for the public, for anyone aspiring to run for office, those who may who may not have been looking at signatures based on the high threshold," Bramble said. "This is the public's ballot, and access to that ballot should be well-defined."

Nuffer's advisory throws uncertainty into the 2016 election cycle as dozens of House and Senate candidates have declared their intent with the state elections office to gather signatures, and some have already turned in completed petitions.

Bramble said he doesn't believe the judge would disqualify them from the ballot.

House Speaker Greg Hughes, R-Draper, warned that the judge could do away with the signature gathering process but maintain an alternative route to the primary ballot, allowing anyone who pays a filing fee a spot.

"This is the mushroom cloud idea for me," the speaker told the House GOP caucus. "I can't imagine anything worse than that for me."

The law allows candidates to seek a nomination by collecting signatures, going through the caucus and convention system, or both.

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

Signature gathering percentage requirements for Republicans in House district races appear to range from 7.1 percent to 57.2 percent, with the requirement in 54 of the 75 House districts exceeding 10 percent of registered GOP voters, according to the court order.

Senate district races appear to range from 6.2 percent to 30.8 percent, with 12 of the 29 Senate districts exceeding 10 percent.

"Several cases hold that requirements of low percentages, such as 2 and 3 percent of eligible voters or signers, are constitutional and do not impose a severe burden on ballot access," Nuffer wrote. "Other cases have held that signature gathering requirements from 2 to 5 percent can be unconstitutional if accompanied by other harmful factors."

Nuffer's order prompted Rep. Kraig Powell, R-Heber City, to introduce a bill Monday that would wipe out all the thresholds, including the 28,000 signatures U.S. Senate and gubernatorial candidates are required to collect, as well as the 7,000 for congressional candidates to secure a spot in the primary.

HB481 would change the law to a flat 2 percent of eligible voters in the candidate's party for all offices in the state. It also allows voters to sign more than one candidate's petition.

In addition to the "high and disparate" signature requirements, Nuffer wrote that the restriction on voters signing more than one petition might also be unconstitutional. It would be burdensome, for example, on candidates needing 57 percent, he said.

"In such a district, only one candidate could obtain access by signature gathering to the party's primary ballot because no other candidate would also be able to obtain 57 percent signatures," Nuffer wrote.

Utah GOP Chairman James Evans said he is asking lawmakers not to support Powell's bill because "it would destroy the caucus system."

Evans told the House GOP caucus he expects the judge to strike the thresholds. But he said the party doesn't want to see the Legislature take action.

"As a party, what we don't accept is the Legislature lowering the thresholds because that will essentially eliminate the caucus," he said.

Evans said all involved parties have already agreed to allow the courts to rule on the constitutionality.

Evans called Nuffer's order a significant development.

"It seems as though another part of this law will be found unconstitutional," he said.

Nuffer earlier ruled that the state couldn't require political parties to open their primary elections to unaffiliated voters. The Utah GOP allows only registered Republicans to cast ballots in the primary.

The Utah Republican Party sued the state, arguing it has the right to decide which of the two paths candidates may take to the ballot, and it has chosen the convention route. The state contends the choice belongs to the candidate.

Evans said he has yet to see compelling arguments about "why the state needs to reach in and tell us how to select our nominees."

"Candidates already know that there is a solid way to get the nomination and that is the convention process they've been using for decades," he said.

Lt. Gov. Spencer Cox, who oversees state elections, earlier advised candidates to take both routes.

The judge asked the Utah GOP and the state to submit arguments by Friday about the signature gathering requirements and the ramifications on the 2016 election cycle if it were struck down. He also wants to be made aware of any proposed legislation that would change the thresholds.

A hearing is scheduled for next Monday.

Hughes told the House Republican caucus he wants lawmakers to tackle the issue before the session ends Thursday.

"This is a big, big issue and we have no time. I'm going to tell you, we serve the public better if we come up with an answer," he said.

Senate President Wayne Niederhauser, R-Sandy, said majority Senate Republicans have considered possible legislation and whether it's possible to get it passed, "both of which we're very unsure about."

Rep. Jake Anderegg, R-Lehi, said he has been told that Count My Vote, the group that sought a public referendum on a direct primary two years ago, would go forward with an initiative petition in the next election.

Contributing: Lisa Riley Roche