On October 9, the Utah Republican Party asked the U.S. Supreme Court to hear Utah Republican Party v Cox. This is the case in which the Tenth Circuit had upheld a Utah election law, telling parties that they must allow candidates to petition onto the party’s primary ballot. The Utah Republican Party does not object to nominating by primary. But it only wants candidates on its primary ballot who showed significant support at a party endorsements meeting.
The text of the cert petition is 37 pages, case 18-450. It argues forcefully that freedom of association does not permit state governments to override the wishes of the party, as to how the party nominates. As far as is known, this is the first time any state unit of the Democratic or Republican Party has asked the U.S. Supreme Court to overturn a state law that tells parties how they nominate candidates, except for the 2000 California decision that overturned California’s mandatory blanket primary. The brief forcefully argues that the language in a 1974 U.S. Supreme Court case, American Party of Texas v White, that says “it is too plain for argument” that states can tell parties they must nominate by primary, was mistaken. In any case, that sentence in American Party of Texas was dicta. Justice Byron White, who wrote that opinion, was not being asked by any party to decide whether the state could force it to nominate by primary. He just added that sentence, gratuitously. But lower courts have long taken it to be binding. Thanks to Rick Hasen for the link to the brief.