Skip to content

Get Judicial Watch Updates!

DONATE

Judicial Watch • Utah v Cox candidate selection Scotus 18-450

Utah v Cox candidate selection Scotus 18-450

Utah v Cox candidate selection Scotus 18-450

Page 1: Utah v Cox candidate selection Scotus 18-450

Category:

Number of Pages:20

Date Created:November 16, 2018

Date Uploaded to the Library:November 16, 2018

Tags:Cox, associations, tocqueville, Partys, Utah, Tenth, selection, democracy, candidate, SCOTUS, Republican, Amici, democratic, PARTY, political, amendment, rights, jones, Circuit, American, Supreme Court


File Scanned for Malware

Donate now to keep these documents public!


See Generated Text   ∨

Autogenerated text from PDF

No. 18-450 THE
$upreme QCourt tbe Wniteh $1ates REPUBLICAN PARTY,
Petitioner,
SPENCER Cox, AL.,
Respondents. Petition for Writ Certiorari the United
States Court Appeals for the Tenth Circuit
BRIEF AMICI CURIAE JUDICIAL
WATCH, INC. AND ALLIED EDUCATIONAL
FOUNDATION SUPPORT PETITIONER
Robert Popper
Counsel Record
Eric Lee
JUDICIAL WATCH, INC.
425 Third Street
Washington, 20024
(202) 646-5172
rpopper@judicialwatch.org
Counsel for Amici Curiae
Dated: November 13, 2018
TABLE CONTENTS
TABLE AUTHORITIES ...... ...... ...... ...... ...... ........
INTERESTS THE AMICI CURIAE .....................
SUMMARY ARGUMENT .....................................
ARGUMENT ...............................................................
Tocqueville Believed the Importance Free
Private Associations and Foresaw That
Governments Would Try Control Them ......
II. 54s Burden the First Amendment
Associational Rights the Utah Republican
Party Severe .....................................................
CONCLUSION ..........................................................
TABLE AUTHORITIES
Cases
American Comm. Assn Douds,
339 U.S. 382 (1950) ..................... ...... ...... ...... .........
Bank Augusta Earle, U.S. 519,
1839 U.S. LEXIS 455 (1839) .................................
Boy Scouts America Dale,
530 U.S. 640 (2000) ........................................ 11,
California Democratic Party Jones,
530 U.S. 567 (2000) ............................ 11, 13, 14,
Citizens Against Rent Control/Coalition for Fair
Haus. Berkeley, 454 U.S. 290 (1981) ...............
Clingman Beaver, 544 U.S. 581 (2005) ...... 11,
Colo. Republican Fed. Campaign Comm FEC,
518 U.S. 604 (1996) .............................................. S.F. City Democratic Central Committee,
489 U.S. 214 (1989) ........................................ 11,
Hobby Lobby Stores, Inc. Sebelius,
723 F.3d 1114 (10th Cir. 2013) ........ .... ...... 14-15
League Women Voters Minn. Ritchie,
819 N.W.2d 636 (Minn. 2012) ................................
111
NAACP Alabama rel. Patterson,
357 U.S. 449 (1958) ........................... ...... ...... .......
NAACP Claiborne Hardware Co.,
458 U.S. 886 (1982) .......................... ..... ...... 11-12
Obergefell Hodges, 135 Ct. 2584 (2015) ..............
Roberts United States Jaycees,
468 U.S. 609 (1984) ........................................ 12,
State Fain, 116 Idaho (Id. 1989) ........................
Tashjian Republican Party, U.S. 208 (1986) .............................................
Utah epublican Party Cox,
885 F.3d 1219 (10th Cir. 2018) ........ .... .... passim
Utah Republican Party Cox,
892 F.3d 1066 (10th Cir 2018) ........ .... .... ......
Wash. State Grange Wash. State Republican
Party, 552 U.S. 442 (2008) ............................. 11,
Zubik Burwell, 136 Ct. 1557 (2016) .... ..... ......
Constitutional Provisions
U.S. CONST. art III, ........ ..... .... .... .... .... ........
Statutes
Utah Code 20A-9-101 (SB 54) ........................... passim
Other Authorities
ALEXIS TOCQUEVILLE, DEMOCRACY AMERICA
(G. Lawrence J.P. Mayer, ed.
trans., 1988) .................................... ...... .... passim
ALEXIS TOCQUEVILLE, DEMOCRACY AMERICA
(P. Bradley, ed. 1954) ....................................... ...
Jason Mazzone, Freedoms Associations, Wash. Rev. 639 (2002) ................................
ROBERT NISBET, THE QUEST FOR COMMUNITY: STUDY THE ETHICS ORDER AND
FREEDOM (1953) ................................................... OBERT UTNAM, OWLING ALONE:
THE COLLAPSE AND REVIVAL AMERICAN
COMMUNITY (2001) ...............................................
Utah Republican Party 2015 Constitution art. XII,
1.A- 2.G, .A, http://utah.gop/wp-content
/uploads/2015-Party-Constitution.pdf.. .................
INTERESTS THE AMICI CURIAEl
Judicial Watch, Inc. (Judicial Watch) nonpartisan, public interest organization headquartered Washington, D.C. Founded 1994, Judicial
Watch seeks promote accountability, transparency
and integrity government, and fidelity the rule
oflaw. The Allied Educational Foundation (AEF) nonprofit charitable and educational foundation
based Englewood, New Jersey. Founded 1964,
AEF dedicated promoting education diverse
areas study. furtherance their collective goals, amici file
amici curiae briefs matters they believe are
public importance and have appeared either
amicus amici curiae several recent cases before
this Court involving election law. See Husted
Philip Randolph Inst., Sup. Ct. No. 16-980; Gill
Whitford, Sup. Ct. No. 16-1161; Benisek Lamone,
Sup. Ct. No. 17-333; North Carolina North Carolina
State Con{ the NAACP, Sup. Ct. No. 16-833. expressive organizations, amici have
legitimate interest this case. The Tenth Circuits
holding could have profound implications not only for
political parties but also for all expressive
organizations. Amici assert that review warranted
Amici state that counsel for party this case authored
this brief whole part; and person entity, other than
amici and its counsel, made monetary contribution intended
fund the preparation and submission this brief. Amici sought
and obtained the consent all parties the filing this amici
brief more than ten days prior the date was due. this Court because the Tenth Circuit misapplied
the governing standard and this Courts First
Amendment jurisprudence.
INTRODUCTION AND
SUMMARY ARGUMENT
Until 2014, the Utah Republican Party selected
its candidates for nomination solely through local
caucus and convention system. The local caucus
allowed Utah Republican Party members elect
delegates represent them the nominating
convention. Those delegates then selected candidates appear the general election ballot. See Utah
Republican Party 2015 Constitution art. XII, 1.A-C,
2.G, 3.A.2 The caucus procedure and subsequent
nominating convention was the sole method the Utah
Republican Party employed choose its candidates
for office.
That procedure was changed, however, not
the Utah Republican Party, but the Utah
Legislature, when enacted the Either Both
Provision into law.
That provision
require[s] parties allow candidates qualify for
the primary ballot through either the nominating
convention gathering signatures, both. Utah
Republican Party Cox, 885 F.3d 1219, 1224 (10th
Cir. 2018). divided panel the Tenth Circuit found that
the Either Both Provision did not violate the Utah
Available http://utah.gop/wp-content/uploads/2015-PartyConstitution.pdf
Republican Partys First Amendment right
freedom association. Id. 1237. Relying dicta
and dissenting opinions from this Court, the majority
concluded that the Either Both Provision 54,
despite fundamentally altering the Utah Republican
Partys
governing
structure,
was
not
unconstitutional violation the Utah Republican
Partys First Amendment associational rights,
because its roughly 600,000 registered members only
faced minor burden. Id. 1231-1235.
Amici respectfully submit that this ruling both
dangerous and wrong. dangerous because
affords state governments the upper hand longrunning battle-first identified and described
Alexis Tocqueville-between private associations,
which are necessary democratic societies afford
citizens unifying pow against the central
authorities, and the central authorities themselves,
which oppose private associations for that very eason. The ruling wrong because simply ignores
the independent associational rights held political
parties, opposed their individual members and
because slights the severe burden those parties
imposed government interference with their
structure and organization.
The petition for certiorari should granted.
ARGUMENT allowed stand, the Tenth Circuits ecision
will significantly degrade the associational rights
political parties. This result contrary Supreme
Court precedent.
system. also bad for our democratic
The facts this case highlight just how poorly
associational rights fared below. Petitioner the
Utah Republican Party. the Tenth Circuit
majority acknowledged, the Utah Legislature that
adopted comprised overwhelming
Republican majorities both the State House and
State Senate. Utah Republican Party, 885 F.3d
1224. other words, members the Utah
Republican Party who could not convince fellow
members adopt the changes incorporated
reconvened legislators, voted their preferences into
law, and this way compelled their fellow members accept these changes.
The rationale offered for this party coup was
remarkably thin. The State argued that its action
was reasonable egulation furthering the
important Utah interests managing elections
controlled manner, increasing voter participation,
and increasing access the ballot. 885 F.3d 1236. hard know what make this string
buzzwords and phrases. How, for example, does the
law manag[e] elections controlled manner?
What does this mean context: what control,
why good, and how primary election more
controlled than convention election? And even
assuming that more members vote primary
elections, which would explain the references above
increased participation and access, not also
plausible that those who run and are elected
delegates neighborhood caucuses, and who then
attend party convention, understand local concerns
better, and are more dedicated party activists?
But more the point, what right does the
State Utah claim the authority inflict its
preferences between and among these various choices the Utah Republican Party, private political
association? The Tenth Circuits decision made this
outcome possible series legal maneuvers that
lowered the standard Respondents had meet
justify the burden Petitioners associational rights.
The Tenth Circuit set the rights party members
against what described thos the party
leadership-by which meant the Party-and then
discounted the latters rights almost completely. 885
F.3d 1233. Considering only the inconvenience
individual party members, the Tenth Circuit
concluded that 54s burden was minimal. Id.
1235. Because this was determined so, Utahs
regulation could justified were reasonable.
Id. (citations omitted). The Tenth Circuit could then
rely what described technically dicta-in
other words, dicta-from Supreme Court opinions
conclude that was reasonable. Id. 1231.
Amici wish point out that the Tenth Circuits
facile approach fails justice fundamental The Tenth Circuit argued that was bound Supreme Court
dicta almost firmly the Courts outright holdings,
particularly when the dicta ecent and not enfeebled later
statements. 885 F.3d 1231 (citation omitted). But judicial
statements about matters that are not issue are etter than
advisory opinions, which are barred the Constitution. See
U.S. CONST. art III, (judicial Power shall extend Cases
and Controversies).
First Amendment right. Alexis Tocqueville
discerned almost 180 years ago, free political
associations are particularly important
democratic system like ours, where the tendency for
individuals their own separate ways. also
foresaw, governments will tend view private
political associations enemies and will try
restrict their freedom. Amici respectfully submit that
the Court plays vital role defending these
institutions
from
needless
government
encroachments and intrusions-like those
imposes the Utah Republican Party.
Tocqueville Believed the Importance
Free Private Associations and Foresaw
That Governments Would Try Control
Them.
After touring this countr 183 ench
lawyer philosopher, and writer Alexis Tocqueville
published his observations.
The result was
masterpiece, global interpretation the meaning American civilization. ALEXIS TOCQUEVILLE,
DEMOCRACY AMERICA (G. Lawrence J.P.
Mayer ed. trans. 1988) (1835-1840) (foreword
J.P. Mayer) combination legal historian,
brilliant anthropologist, classic sociologist,
fully equipped with the knowledge his time (id.
xii), Tocqueville elaborated comprehensive analysis American law politics, and society. DEMOCRACY
AMERICA was instantly recognized important
classic. From the time was first published until the resent day, Tocqueville has been cited hundreds state and federal judicial opinions, and has been
cited dozens times by, before, this Court.
Tocqueville was one the first identify the
tendency those who enjoy political equality live greater social isolation from those around them.
equality spreads there are more and more people
whose material resources allow them look after
their own eeds. TOCQUEVILLE, supra, 508.
they owe man anything, they hardly expect
anything from anybody. They form the habit
thinking themselves isolation ... Id.
The political problem arising from this tendency,
Tocqueville noted, was that this outcome exactly
what the enemies liberty would prefer. Despotism
... sees the isolation men the best guarantee
its own permanence. Id. 509. Paradoxically, the
vices originating despotism are precisely those
favored equality.
The two opposites fatally
complete and support each other. Id. 509-10.
Equality puts men side side without common
link hold them firm, while [d]espotism raises See Bank Augusta Earle, U.S. 519, 1839 U.S. LEXJS
455, ***140 (1839) (counsel citing learned foreign lawyer,
Tocqueville); see, e.g., Obergefell Hodges, 135 Ct. 2584,
2601 (2015); American Comm. Assn Douds, 339 U.S. 382, 415
(1950) (Frankfurter, J., concurring) (citing the perceptive
Tocqueville); League Women Voters Minn. Ritchie, 819
N.W.2d 636, 675 (Minn. 2012) (Tocqueville was one the
nineteenth centurys most prominent and astute observers life
and politics the United States); State Fain, 116 Idaho 82,
103 (Id. 1989) (Tocqueville understood and appreciated
democracy America with keener insight than any other
observer the Nineteenth Century
barriers keep them apart. Id. 510. For this
reason, [d]espotism, dangerous all times,
particularly feared ages democracy. Id.
Yet Tocquevilles view, American society had
evolved institutions that could counter the dangerous
tendency
toward
social
atomization-private
associations. Tocqueville observed that Americans
all ages, all stations life, and all types disposition
are forever forming associations. Id. 513. There
are commercial and industrial associations but also
others thousand different types-religious,
moral, serious, futile, very general and very limited,
immensely large and very minute.
Americans
combine give fetes, found seminaries, build
churches, distribute books, and send missionaries
the antipodes. Id. These associations include what would call ideological political groups.
Americans want proclaim great truth
propagate some feeling, conceive sentiment idea that they want produce before the world,
they seek each other out, and when found they unite.
Id. 513, 516.
These associations combat the tendency towards
social isolation. political association draws lot
people out their own circle; however much
differences may naturally keep them apart,
brings them together ... Id. 521. With this unity
comes political strength. Thenceforth they are
longer isolated individuals, but power conspicuous
from the distance whose actions erve example;
when speaks, men listen. Id. 516.
Tocqueville argued, however, that other factors
made the position private political associations
democratic societies more less precarious. One
the great themes DEMOCRACY AMERICA the
natural tendency democratic societies toward
political centralization. This due number
causes, including the democratic preference for
equality easier perceive, understand, and
defend than liberty; growing intolerance any
perception inequality, which makes harder
accept even imagine secondary powers below the
level the central government; and the central
authoritys encouragement these tendencies
pursuit its own interests.
The end result that the central government
comes see political associations rivals. Among
democratic peoples only through association that
the citizens can raise any resistance the central
power.
The latter therefore always looks with
disfavor associations that are not under its
thumb. Id. 686. Nor may private political
associations depend public support.
[T]he
citizens often have secret feelings fear and jealousy Tocquevilles analysis political centralization extended and
complex and only partial summary his conclusions are
provided here. See generally TOCQUEVILLE, supra, 503 (Vol.
II, Part II, ch. Why Democratic Nations Show More Ardent
and Enduring Love for Equality Than for Liberty); 668 (Part
IV, ch. Why the Ideas Democratic Peoples About
Government Naturally Favor the Concentration Political
Power); 671 (ch. How Both the Feelings and the Thoughts Democratic Nations are Accord Concentrating Political
Power); 690 (ch. What Sort Despotism Democratic
Nations Have Fear).
toward just these associations which they stand
such great need, and this prevents them from
defending them, because associations power
almost regarded dangerous privilege. Id.
686-687. Thus, although political associations are
particularly necessary for democratic societies, they
are often hard establish and maintain within those
societies.
When all men are alike, easy
establish single, all-powerful government;
mere instinct will that. But great deal intelligence, knowledge, and skill are
required these circumstances organize
and maintain secondary powers and
create, among independent but individually
weak citizens, free associations which can
resist tyranny ...
Id. 676.
Tocquevilles predictions often seem eerily
prescient. certainly true here. The danger
social isolation democratic society now
perennial theme scholars and observers. The
growth the size and power the federal
government has been dramatic since Tocquevilles
time that even might surprised. And this case only the latest reach this Court which the See, e.g., ROBERT PUTNAM, BOvVLING ALONE THE COLLAPSE
AND RKVIVAL AMERICAN CmvIMUNITY (2001); ROBERT NISBET,
THE QUEST FOR COMMUNITY: STUDY THE ETHICS ORDER
AND FREEDOM (1953).
dispute concerns government effort regulate
private political civil associations. With respect political parties particular, Judge Tymkovich
recognized, [i]n important ways, the party system
the weakest has ever been-a sobering reality
given parties importance our republics stability.
Utah Republican Party Cox, 892 F.3d 1066, 1072
(10th Cir 2018) (Tymkovich, C.J., concurring
denial rehearing bane).
For the reasons Tocqueville elaborated, there
much more stake than the Tenth Circuit
recognized. The associational rights the Utah
Republican Party should not have been reckoned
insignificant that Court suggested, and Petitioner correct argue that the Partys important
associational rights exist independently those its
members. Amici respectfully submit that the Court
should take this case affirm these principles.
II. 54s Burden the First Amendment
Associational Rights the Utah
Republican Party Severe.
The right freely associate almost
inalienable its nature the right personal
liberty. legislator can attack without impairing
the foundations society. NAACP Claiborne
See, e.g., Wash. State Grange Wash. State Republican Party,
552 U.S. 442 (2008); Clingman Beaver, 544 U.S. 581 (2005);
California Democratic Party Jones, 530 U.S. 567 (2000); S.F. City Democratic Central Committee, 489 U.S. 214 (1989). See, e.g., Zubik Burwell, 136 Ct. 1557 (2016); Boy Scouts America Dale, 530 U.S. 640 (2000). corresponding right associate with others
pursuit wide variety political, social, economic,
educational, religious, and cultural ends.). Each
group, regardless its message, has right
associate without government interference control.
This right crucial preventing the majority from
imposing its views groups that would rather
express other, perhaps unpopular, ideas. Dale, 530
U.S. 647-648 (citation omitted); Jones, 530 U.S. 4-575 (Freedom association would prove
empty guarantee associations could not limit
control over their decisions those who share the
interests and persuasions that underlie the
associations being.) (citation omitted); see also
TOCQUEVILLE, supra, 514 (if inhabitants
democratic countries had neither the right nor the
taste for uniting for political objects, their
independence would risk). particular, government actions that seek
limit this popular sovereignty through intrusion[s]
into the internal structure affairs association may unconstitutionally burden this freedom.
Dale, 530 U.S. 648, citing Jaycees, 468 U.S. 623;
Tashjian Republican Party, 479 U.S. 208, 224 (the
freedom association
protects
partys
determination ... the structure which best allows pursue its political goals.); Eu, 489 U.S. 230
(discretion how organize itself, conduct its
affairs, and select its leaders are among
associations First Amendment rights). When state
changes political partys governing structure,
forcing the party associate with those whom
disagrees, [s]uch forced association has the likely
outcome-indeed the intended outcome-of
changing the parties message. Jones, 530 U.S.
581-582. This Court has found heavier burden political partys associational freedom. Id. 582.
Election regulations that impose severe burden
associational rights are subject strict scrutiny and
are upheld only they are narrowly tailored serve compelling state interest. Wash. State Republican
Party, 552 U.S. 451, citing Clingman, 544 U.S.
586 (internal quotations omitted).
The Tenth Circuit majority thus erred finding
that the Either Both Provision does not
impose severe burden the Utah Republican
Party. 885 F.3d 1235. inflicts such burden compelling the Utah epublican Party change
its governing structure and allow candidates the
ballot who did not participate the Utah epublican
Partys mandated caucus system. Utah Republican
Party, 885 .3d 1235. The Tenth Circuit was also
wrong slight the associational rights the Party
itself, distinction from the associational rights its
individual embers. The Party expr essive
organization, governed its own charter. Both the
Party and its memb ers have their own First
Amendment rights. Colo. Republican ed. Campaign
Comm. FEC, 518 U.S. 604, 616 (1996)
(independent expression political partys views
core First Amendment activity less than the
independent expression individuals, candidates,
other political committees) (citation omitted); Hobby
Lobby Stores, Inc. Sebelius, 723 F.3d 1114, 11481150 (10th Cir. 2013), affd sub nom. Burwell Hobby
Lobby Stores, Inc. 134 Ct. 2751 (2014) (the civil
liberties organization ... must considered
distinct from the civil liberties any particular
member); Jones, 530 U.S. 582 (referring
partys associational freedom) (emphasis added).
The Tenth Circuits decision ultimately
sanctioned significant expansion states power
intrude the internal affairs political parties. The
ruling threatens impair parties ability function the truly free and independent associations that
Tocqueville saw necessary for American
democracy. Unless this Court intervenes, [f]reedom association would prove empty guarantee,
Jones, 530 U.S. 575, and the independence every
political partys governing structure would risk.
CONCLUSION
For the foregoing reasons, amici respectfully
request that the Court grant the petition for writ
certiorari.
Respectfully submitted,
Robert Popper
Counsel Record
Eric Lee
JUDICIAL WATCH, INC.
425 Third Street
Washington, 20024
(202) 646-5172
rpopper@judicialwatch.org
Counsel for Amici Curiae
November 13, 2018