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Federal appeals court denies rehearing on controversial Utah election law

By Dennis Romboy, KSL | Posted - Jun. 9, 2018 at 7:07 p.m.

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SALT LAKE CITY — A federal appeals court on Friday denied the Utah Republican Party's request for a rehearing on the state's controversial law for nominating candidates for elected office.

In rejecting the request, the 10th Circuit Court of Appeals in Denver left its 2-1 decision upholding the law the Utah Legislature passed four years ago as SB54. Appeals courts rarely grant "en banc" hearings before the entire panel of judges after issuing an opinion.

Even Chief Judge Timothy Tymkovich, who was the dissenting vote in the court's earlier opinion, opposed the rehearing, but wrote in a separate opinion that the U.S. Supreme Court should take up the case.

"The time appears ripe for the court to reconsider (or rather, as I see it, consider for the first time) the scope of government regulation of political party primaries and the attendant harms to associational rights and substantive ends," he wrote.

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 Utah Legislature as a compromise with backers of the Count My Vote ballot initiative that would have replaced the traditional system with a direct primary. State GOP Chairman Rob Anderson tried to end the lawsuit last year but was overruled by the party's State Central Committee.

The state opposed the rehearing, arguing that nothing justifies the party's request that the court find that the First Amendment prohibits states from requiring political parties to nominate their general election candidates by primary election, and allowing candidates to qualify for the primary ballot by nomination petition.

Lt. Gov. Spencer Cox said in a statement that the decision provides a "sorely needed" resolution to a lengthy and divisive issue.

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"Gov. (Gary) Herbert and I look forward to meeting with Republican leadership in the near future to discuss how to best unite our party," he said.

Don Guymon, a member of the Utah GOP's Constitutional Defense Committee, called the decision disappointing.

The party plans to review it's legal options, including petitioning the U.S. Supreme Court, he said. The law, he said, threatens free speech and free association rights not only for political parties but also for churches and other advocacy groups.

The Utah Republican Party has 90 days to decide whether to pursue further legal action.

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