On Friday, April 10, U.S. District Court Judge David Nuffer, an Obama appointee, will commence a trial in Utah Republican Party v Herbert, 2:14cv-876. The Republican Party is challenging a law passed in 2014 (SB 54) that allows candidates to petition onto the primary ballot even if that candidate had not shown much support at the party’s caucus. Until SB 54 passed, Utah had been the only state in which it is impossible for a candidate for all partisan office to get on a primary ballot, without showing support at the earlier party caucus.
The Republican Party had tried to force Governor Gary Herbert to testify, but on April 9, the judge ruled against that. Herbert is a Republican. A judicial order issued on April 9 says, “the Utah GOP is required to identify specific defects in SB 54 by line number of subsection, the constitutional provisions or case law supporting the alleged defects, and facts in the record in support of the Utah GOP position…Utah GOP will not be allowed to offer facts on the following points: evidence attempting to show a compromise between the Utah legislature and other parties, as this does not appear to be relevant under case law; and evidence attempting to show the general intent of the legislature. No case law appears to support the argument that a legislature may not impair associational rights of a political party. They may not do so in an unconstitutional manner.”
“They may not do so in an unconstitutional manner.” Isn’t that the issue at stake, whether this provision is an unconstitutional burden on the association rights of the Republican Party? It seems that the judge is trying to force the party to demonstrate that the provision has already been so ruled before being allowed to argue the matter before the judge.