Full opinion text
MEMORANDUM DECISION AND ORDER • DENYING [37] MOTION FOR JUDGMENT ON THE PLEADINGS; • DENYING [38] MOTION FOR JUDGMENT ON THE PLEADINGS; • DENYING [41] MOTION FOR PARTIAL SUMMARY JUDGMENT; AND • ENTERING PARTIAL SUMMARY JUDGMENT David Nuffer, United States District Judge The Utah Republican Party (“URP”) claims in subparagraphs 73(b) through (g) of its Complaint (mirrored in subpara-graphs 79(a) through (f) of that Complaint) that the State of Utah may not require it to permit its members to seek a place on the primary election ballot through gathering signatures. The URP argued first that the plain language of the Either or Both Provision did not require the URP to allow members the option of gathering signatures, but this argument was rejected by the Utah Supreme Court. The URP also argues that by leaving the choice of paths to the primary election ballot in the hands of party members, the statute is unconstitutional because it abridges the rights of the party. This Memorandum Decision and Order concludes that the Either or Both Provision, which, as interpreted by the Utah Supreme Court, allows URP members to choose to access the primary election ballot by either signature gathering, or through Utah’s more traditional caucus and convention route, or both, does not impair the URP’s constitutional rights but is a legitimate exercise of the state’s power to regulate elections. CONTENTS PENDING MOTIONS... 1154 STANDARD FOR JUDGMENT ON THE PLEADINGS.. .1157 STANDARD FOR SUMMARY JUDGMENT... 1157 UNDISPUTED MATERIAL FACTS.. .1158 The First Lawsuit... 1158 URP and LG Communication Following the First Lawsuit.. .1163 The Current Lawsuit... 1164 Certified Questions... 1165 Utah Supreme Court Ruling on Certified Questions... 1166 URP’s Constitution, Bylaws, and Rules.. .1167 URP’s Additional Statements of Position ...1168 DISCUSSION... 1169 Preclusion Issues Presented... 1169 Claim Preclusion Does Not Bar URP Claims in Subparagraphs 73(b) through (g)... 1170 Issue Preclusion Does Not Bar URP Claims in Subparagraphs 73(b) through (g)...1173 The Issues are Ripe... 1173 Standing Issues and Doctrine... 1176 The URP has Standing in the Case.. .1176 The URP has Standing on the Motion... 1177 The Either or Both Provision is Constitutional ...1178 The Signature Gathering Provision and the Either or Both Provision Fulfill Important State Regulatory Interests. ..1179 Issue Framing is Not Determinative ...1180 SB54 Provides Significant Control to the URP in the Primary Election Process ...1180 None of the URP’s Rights Are Severely Burdened...1181 SB54 is Not the Product of Invidious Discrimination... 1187 Severability Need Not Be Considered ...1187 CONCLUSION.. .1187 ORDER... 1188 DECLARATORY JUDGMENT.. .1188 PENDING MOTIONS The URP moves for partial summary judgment on subparagraphs 73(b) through (g) of its Complaint (“41 URP MPSJ”). Paragraph 73 of the Complaint asserts that: 73. The Party is entitled to a declaratory judgment establishing the unconstitutionality of the SB54 set forth above as applied to the manner in which a. the State has taken a different position from that taken in the First Lawsuit, that the Party relied on in terminating prior litigation; b. the State has taken away and misappropriated the Party’s right to certify and endorse its nominees for elected office; c. the State has taken away and misappropriated the Party’s right to communicate its endorsement on the general election ballot and to control the use of its name and emblem on the ballot; d. the State has taken away and misappropriated the Party’s right to determine for itself the candidate selection process that will produce a nominee who best represents the Party’s political platform; e. burdened the Party’s associational rights by mandating changes to the Party’s internal rules and procedures, at the threat of depriving the Party of its rights if it refuses to comply, that disadvantage the Party, and that the Party has rejected and that conflict with the rules the Party has determined for itself, as set forth in its Constitution and Bylaws, will produce a nominee who best represents the Party’s political platform; f. burdened the Party’s associational rights, and the rights of disassociation, by imposing upon the Party a nominee who may not necessarily be a Party member and without guaranteeing that nominee has been selected by a majority of Party members participating in the primary election; g. burdened the Party’s associational rights and rights to free speech, by taking away the Party’s right to have its nominees commit themselves to the Party Platform “as the standard by which my performance as a candidate and as an officeholder should be evaluated,” and replacing it with a process that requires only that candidates gather signatures; h. burdened the Party’s associational rights, and the rights of disassociation, by taking away the Party’s convention system as its preferred way of selecting nominees and allowing a party to designate candidates in the primary election by convention only if it agrees to open that primary election, that the State now mandates, to persons unaffiliated with the Party; i. burdened the Party’s associational rights and the rights of disassociation, by imposing on candidates seeking the Party’s nomination onerous signature gathering requirements beyond those ever allowed by the United States Supreme Court, and thus unconstitutionally burdens the Party’s rights; j. burdened the rights of the Party and its members by imposing on them signature-gathering requirements beyond those ever allowed by law; and k. otherwise burdening the Party’s rights of association, or depriving it of its rights of disassociation, free speech and due process as set forth above. Summary judgment was previously granted in favor of the Lieutenant Governor (“LG”) with respect to subparagraphs 73(a), (i), and (j). That order rejected the URP dclaims that the numeric signature requirements rendered the signature gathering path unconstitutional. Also, the URP acknowledged in a hearing on February 4, 2016 that subparagraph 73(h) was not at issue because it was resolved in the First Lawsuit. Further, subparagraph 73(k) is a “catch-all” which does not raise new subject matter that is not already alleged in the previous subparagraphs. Thus, this Memorandum Decision and Order resolves subparagraphs 73(b) through (g), the only remaining URP claims in its first cause of action and the only subparagraphs raised in the 41 URP MPSJ. The LG and the Utah Democratic Party (“UDP”) oppose the 41 URP MPSJ (“LG Opposition” and “UDP Opposition” respectively). For the reasons stated below, the 41 URP MPSJ is DENIED. Furthermore, since proper notice has been given under Rule 56(f) that summary judgment may be granted for the LG as to the issues raised in the 41 URP MPSJ, and the parties have had the opportunity to file responses to that notice, summary judgment is granted in favor of the LG and against the URP as to the issues raised in the 41 URP MPSJ. Specifically, summary judgment is GRANTED in favor of the LG and against the URP with respect to subparagraphs 73(b) through (g). Further, declaratory judgment is entered that Utah Code § 20A-9-101(12)(d) (“Either or Both Provision”) is a valid exercise of the state’s power to regulate elections. The Either or Both Provision, by allowing a URP member candidate to gather signatures to obtain access to the URP primary election ballot, imposes a permissible burden on the URP and fulfills the stated purposes of the statute. Those purposes are to manage elections in a controlled manner, increase voter participation, and increase access to the ballot. Importantly, it is not the state that decides which candidates will be placed on the general election ballot; rather, only those voters who the URP allows to vote in the URP primary can make that decision. In the 2016 election, only members of the URP are allowed to vote in the URP primary, so the members of the URP — and the members of the URP alone — will decide who represents the URP on the general election ballot. Historically, delegates of the URP often made that decision. Under the state’s new election processes, delegates share that decision-with other members of the URP. While the URP claims this is a “severe” burden on the URP’s rights of association and disassociation, the URP is incorrect. The burden imposed is a reasonable regulation that accomplishes the objectives of the statute. Additionally, the LG and the UDP have moved for judgment on the pleadings. The UDP’s motion for judgment on the pleadings (“37 UDP MJP”) and the LG’s motion for judgment on the pléadings (“38 LG MJP”) were previously denied in part. For the reasons stated below, the remaining portions of the 37 UDP MJP and the 38 LG MJP are DENIED. STANDARD FOR JUDGMENT ON THE PLEADINGS A motion for judgment on the pleadings under Rule 12(c) of the Federal Rules of Civil Procedure is evaluated by the- same standard as a Rule 12(b)(6) motion to dismiss for failure to state a claim. The factual record for such a motion is the text of the challenged pleading. The factual details supporting a' claim must be great enough to make the claim plausible, rather than merely possible. That is, the factual details must be “enough to raise a right to relief above the speculative level. ... ” It must be reasonable for a court to draw the inference that the defendant is liable, based on the facts stated. Recitations of elements of a claim and conclusory statements lack sufficient detail, and cannot trigger a court’s assumption .that all of the ■statements made in the pleading are true. STANDARD FOR SUMMARY JUDGMENT Summary judgment is appropriate if “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” A factual dispute is genuine when “there is sufficient evidence on each side so that a rational trier of fact could resolve the issue either way.” In determining whether there is a genuine dispute as to material fact, the court should “view the factual record and draw all reasonable inferences therefrom most favorably to the nonmovant.” The moving party “bears the initial burden of making a prima facie demonstration of the absence of a genuine issue of material fact and entitlement to judgment as a matter of law.” The factual record for a motion for summary judgment is the undisputed material facts derived from the parties’ briefing. The following Undisputed Material Facts are derived from the 41 URP MPSJ, the LG Opposition, the UDP Opposition, and the portions of the record cited in that briefing., In its Reply, the URP did not respond to any statements of fact. The Undisputed Material Facts which come from the First Lawsuit history, from the statutes, and from the Complaint in this lawsuit are considered in the 37 UDP MJP and the 38 LG MJP. UNDISPUTED MATERIAL FACTS The First Lawsuit In December 2014, the URP filed the First Lawsuit against the Governor and the LG of the State of Utah (collectively “State Defendants”). The First Lawsuit concerned the constitutionality of Senate Bill 54 (“SB54”). SB54 was enacted in 2014 by the Utah State Legislature to modify the Utah Election Code provisions regarding the nomination of candidates, primary and general elections, and ballots. Specifically, the URP claimed that it was entitled to a declaratory judgment and injunctive relief under the First and Fourteenth Amendments of the United States Constitution with respect to the manner in which the State Defendants, through SB54, had: a. ... taken away and misappropriated the Party’s right to certify and endorse its nominees for elected office; b. ... taken away and misappropriated the Party’s right to communicate its endorsement on the general election ballot and to control the use of its name and emblem on the ballot; c. ... taken away and misappropriated the Party’s right to determine for itself the candidate selection process that will produce a nominee who best represents the Party’s political platform; d. burdened the Party’s associational rights by mandating changes to the Party’s internal rules and proee-dures, at the threat of depriving the Party of its rights if it refuses to comply, that disadvantage the Party, and that the Party has rejected and that conflict with the rules the Party has determined for itself, as set forth in its Constitution and Bylaws, will produce a nominee who best represents the Party’s political platform; e. burdened the Party’s associational rights, and the rights of disassociation, by imposing upon the Party a nominee who may not necessarily be a Party member and without guaranteeing that nominee has been selected by a majority of Party members participating in the primary election; f. burdened the Party’s associational rights and rights to free speech, by taking away the Party’s right to have its nominees commit themselves to the Party Platform “as the standard by which my performance as a candidate and as an officeholder should be evaluated,” and replacing it with a process that requires only that candidates gather signatures; and g. burdened the Party’s associational rights, and the rights of disassociation, by taking away the Party’s convention system as its preferred way of selecting nominees and allowing a party to designate candidates in the primary election by convention only if it agrees to open that primary election, that the State now mandates, to persons unaffiliated with the Party; and h. otherwise burden[ed] the Party’s rights of association, or depriving it of its rights of disassociation, free speech and due process as set forth above. The Constitution Party of Utah (“CPU”) was permitted to intervene in the First Lawsuit and asserted similar claims against the State Defendants. The CPU specifically challenged the constitutionality of the nominating petition signature gathering requirements set forth in Utah Code § 20A9-408 (“Signature Gathering Provision”). The CPU contended that SB54 was unconstitutional because the “signature gathering processes are a severe burden on CPU’s associational rights.” The Signature Gathering Provision permits a candidate to appear on a party’s primary ballot by gathering a specified percentage or number of signatures from persons who are qualified to vote in that party’s primary. The URP sought a preliminary injunction in the First Lawsuit to stay the enforcement or implementation of SB54. After the URP’s motion for preliminary injunction was filed, the Utah Legislature enacted Senate Bill 207 (“SB207”), amending SB54 to clarify that anyone seeking the nomination of a political party must be a registered member of that party. The URP’s motion for preliminary injunction was denied. The Order Denying Preliminary Injunction rejected the URP’s claims that SB54 restricted its ability to endorse the candidates of its choice and to regulate the URP’s internal affairs free from state influence, concluding; “[significantly, under SB54, the State does not dictate who is allowed to be a member of a political party,” that “state law allows all political parties to define membership in accordance with party rules,” and that “SB207 eliminated] the [URPJ’s concern that its nominees may not be members of the Republican Party” because “a candidate may not file a declaration of candidacy for a political party of vvhich the candidate is not a member, except to the extent that the political party permits otherwise in the political party’s bylaws.” The Order Denying Preliminary Injunction noted that none of the burdens URP alleged were “severe,” except one, which was not ripe for a challenge: [N]one of the asserted burdens are severe except one, which is not ripe for review since the evidence now presented by the Party cannot sustain an as-applied challenge to the QPP path of SB54. The Order Denying Preliminary Injunction explained Utah Code § 20A-9-101(12)(a) was potentially unconstitutional. This subsection forced a political party to allow unaffiliated voters into the party’s primary election in order to be considered a “qualified political party” (“QPP”). Subsection (12)(a) was referred to as the “Unaffiliated Voter Provision.” The Order Denying Preliminary Injunction explained that the unaffiliated voter issue was not ripe at the preliminary injunction stage because the URP had not yet chosen to become a QPP. All other asserted burdens were rejected. The Order Denying Preliminary Injunction made the following conclusions: Requiring Primary Election [T]he State can constitutionally require the Party to select its candidates through a primary election and the State can lawfully certify the Party’s candidates who receive the most votes in the primary election as the candidates to appear on the general election ballot. Use of Party’s Symbol on the General Election Ballot [Tjhere is no protected free speech right to communicate the Party’s endorsement on the general election ballot. ... The Party may still hold a convention, campaign for candidates, fundraise, and endorse any candidate the Party chooses to support. Interference with Internal Structure of Party SB54 does not prevent the Party from holding neighborhood caucus meetings and conducting those meetings as the Party chooses. Moreover, not all regulation of a party’s internal processes is prohibited or constitutionally questionable. ... Moreover, SB207 [a bill enacted in 2015 by the Utah Legislature] eliminates the Party’s concern that its nominees may not be members of the Republican Party. ,.. Thus, the Party’s concern that its nominees will not be members of the Party is unfounded. Plurality The Party accurately identifies the possibility that, under the provisions of SB54, its nominee may be elected by a plurality, as opposed to a majority, of its members. However, the Party presented no legal authority indicating that there is any constitutional deficiency in a party’s candidate gaining access to the general election ballot based on a plurality vote from a primary election. Thus, the only potentially “severe”, burden identified in the First Lawsuit was the Unaffiliated Voter Provision becausé it forced a QPP to allow unaffiliated voters in the QPP’s primary election. Under SB54, political parties desiring to have candidates featured with party affiliation on the upcoming general election ballot must file a statement with the LG to proceed as a “registered political party” (“RPP”) or a QPP. On or about August 18, 2015, the URP sent a letter to the LG’s office designating itself a QPP in the 2016 election cycle. The letter stated: Pursuant to Utah Code Ann. § 20A-9-101(12)(e), the Utah Republican Party certifies its intent to nominate candidates in 2016 in accordance with its internal rules and procedures and Utah Code Ann. § 20A-9-406. This is without prejudice to the positions the party has asserted in the matter Utah Republican Party v. Herbert, et al., Case No. 2:14-cv-876 (D. Utah), challenging the constitutionality of recent amendments to the Utah Election Code. Later in the' First Lawsuit, the State Defendants and the CPU brought separate motions for summary judgment. The central issue in those motions was whether the Unaffiliated Voter Provision was unconstitutional. The CPU argued it was unconstitutional because it forced QPPs to allow unaffiliated voters to vote in the QPP’s primary election, thus imposing a “severe” burden, and the State did not have a compelling state interest to justify the burden imposed. The State argued the Unaffiliated Voter Provision was constitutionally sound. On October 27, 2015, a hearing was held regarding the CPU’s and the State Defendants’ motions for summary judgment. Discussion was held on the Unaffiliated Voter Provision and other topics, including a very brief discussion regarding the Signature Gathering Provision. State Defendants’ counsel, Mr. Wolf, stated that “in order to be a qualified political party, the party has to allow the member to either seek the nomination through the convention process or seek the nomination through the signature process or both.” Mr. Wolf was referring to Utah Code § 20A-9-101(12)(d) (“Either or Both Provision”), which states that in order to qualify as a QPP, the political party must allow the party candidate to seek the party’s nomination “by the member choosing to seek the nomination by either or both of the following methods: [convention] or [signature gathering].” Questions of interpretation of the Either or Both Provision were certified to the Utah Supreme Court and are discussed below. The following exchange took place between the court and Mr. Wolf: THE COURT: So are there two levels of choice here, then? The qualified political party — let me go back to that — under 12(d), has to permit the member to do one or both of the petition method or nomination through the convention method. So if they only permit nomination by convention, they would be a QPP under 12(d). But then under 406— MR. WOLF: Yes. THE COURT: — the member of the party has the option to use either method regardless of what the party permitted. MR. WOLF: And therein lays the dispute or the conflict between the party defining its membership. THE COURT: That’s the next lawsuit. I can’t deal with it today. MR. WOLF: It’s not before you today, but I want to make sure our record is clear when we go through and create these facts. So I agree with you. You can be a QPP by providing either of those methods or both. THE COURT: Okay. MR. WOLF: But the candidate or the member or the individual has the right to seek the nomination through either or both of those methods. And that sets up a conflict between the party and its members who choose to run for office and potentially the Lieutenant Governor’s office, the Lieutenant Governor is called on to make a decision concerning the objection. Discussion also took place during the October 27 hearing about whether the claims raised by the CPU and the URP in their respective complaints were moot if the Unaffiliated Voter Provision were held to be unconstitutional. The following exchange took place between the court and Messrs. Troupis and Mumford, counsel for the URP: THE COURT: I want to turn now to the Republican Party. If I rule and enter a declaratory judgment and possibly an injunction that 12(a) is unconstitutional and strike it, what other claims remain for adjudication in this case? MR. MUMFORD: May we just confer? THE COURT: Yeah. Everybody talk for a minute. Well, not everybody, just counsel. (Time lapse.) MR. TROUPIS: Your Honor, there would be no other issues for the Republican Party. No other claims. That would resolve the issues. The CPU’s counsel also made similar statements that no other claims would remain, other than a “prevailing party” issue. Based upon the statements made by the CPU’s and the URP’s counsel that no other claims beyond the Unaffiliated Voter Provision required resolution, and after analyzing in detail the Unaffiliated Voter Provision and the governing law regarding forced association, an order was entered on November 3, 2015, finding the Unaffiliated Voter Provision unconstitutional as applied to the CPU and the URP. The order noted, however,- that Utah Code § 20A-9-406(l) replaced the function of the Unaffiliated Voter Provision even though “subsection 406 does not expressly allow a QPP to designate unaffiliated voters to vote in its primary.” The order stated that “such a deficiency is not unconstitutional.” On November 23, 2015, a Declaratory Judgment and Injunction was entered which closed the case. The practical effect of the First Lawsuit was that unaffiliated voters were not able to participate in the URP or CPU primary elections, and were not able to sign petition’s for URP or CPU candidates. There are 610,654 unaffiliated registered voters in Utah. There are about 640,000 registered Republicans in Utah. URP and LG Communication Following the First Lawsuit After the First Lawsuit concluded, the URP formally declared to the LG that it would restrict its candidate-selection procedures- to the convention method. On November 19,2015, the LG responded that he disagreed that the URP could make this restriction, asserting “it is the individual who has the right to choose their path to the ballot and the individual may seek a nomination by the use of both methods.” Republican State Senator Todd Weiler wrote a letter to the LG’s Office asking about his options for gathering signatures in light of the URP’s formal declaration. The LG’s Office replied in a letter dated November 20, 2015'that Sen. Weiler had the option to gather signatures and if the URP revoked Sen. Weiler’s party membership for gathering' signatures, the URP would no longer qualify as a QPP under Utah election law. Subsequently, on January 19, 2016, the LG’s Office issued a Voter and Candidate Clarification memorandum which modified the position taken in the letter to Sen. Weiler: Question #5: Is it possible that the Republican Party will lose its Qualified Political Party, (QPP) status and that candidates who choose only the caucus/convention path will be removed from the ballot? No. Because there is nothing in the law that anticipates what happens if a party fails to follow the requirements of a QPP, and because there is no provision to subsequently disqualify a party, this has been subject to different legal interpretations. On August 17, 2015, the Utah Republican Party certified their designation as a QPP and specifically stated their intention to follow all of the statutory QPP provisions and requirements. As such, my intention is to rely on this certification, and allow candidates access to the ballot through the caucus/convention process, unless and until the party officially revokes that certification. While I reject the possibility of removing candidates that rely on the law to get on the ballot by gathering signatures, I also reject the possibility of removing candidates that rely on the law to participate in the caucus/convention system. The LG’s Office’s position at the time it issued the Voter and Candidate Clarification Memorandum, then, is that a political party which has expressed its intent to restrict candidate-selection procedures to the convention method will still remain a QPP, and that the political party’s candidates who use the convention method will have access to the ballot without concern that their party’s QPP status will be revoked. The LG’s Office has also taken the position that signature-gathering candidates from that political party will still have access to the ballot even though use of that method is contrary to stated URP intent. To date, several URP members have declared their intention to gather signatures and have been qualified by the LG as having gathered enough verified signatures to appear on the URP’s primary election ballot, including Sen. Weiler and the LG’s running mate, Governor Gary R. Herbert. The Current Lawsuit The URP filed the current lawsuit on January 15, 2016, asserting that SB54 was unconstitutional. The current lawsuit appears to be very similar to the First Lawsuit in that it named the Governor and the LG as Defendants and seeks relief under the First and Fourteenth Amendments of the United States Constitution. Specifically, in language very similar to paragraphs 110(a) through (h) of URP Complaint 1 in the First Lawsuit, paragraph 73 of the URP Complaint in this lawsuit asserts that: 73. The Party is entitled to a declaratory judgment establishing the unconstitutionality of the SB54 set forth above as applied to the manner in which b. the State has taken away and misappropriated the Party’s right to certify and endorse its nominees for elected office; c. the State has taken away and misappropriated the Party’s right to communicate its endorsement on the general election ballot and to control the use of its name and emblem on the ballot; d. the State has taken away and misappropriated the Party’s right to determine for itself the candidate selection process that will produce a nominee who best represents the Party’s political platform; e. burdened the Party’s associational rights by mandating changes to the Party’s internal rules and procedures, at the threat of depriving the Party of its rights if it refuses to comply, that disadvantage the Party, and that the Party has rejected and that conflict with the rules the Party has determined for itself, as set forth in its Constitution and Bylaws, will produce a nominee who best represents the Party’s political platform; f. burdened the Party’s associational rights, and the rights of disassoeíátion, by imposing upon the Party a nominee who may not necessarily be a Party member and without guaranteeing that nominee has been selected by a majority of Party members participating in the primary election; g. burdened the Party’s associational rights and rights to free speech, by taking away the Party’s right to have . its nominees commit themselves to the Party- Platform “as the standard by which my performance as a candidate and as an officeholder should be evaluated,” and replacing it with a process that requires only that candidates gather signatures; The UDP was permitted to intervene in the current lawsuit, and it asserts claims under the First and Fourteenth Amendment as well. After the current lawsuit was filed, a hearing was held to discuss the claims raised by the current lawsuit. At the hearing, upcoming election deadlines were discussed and an éxpedited schedule was set for briefing of motions. Certification of - certain questions was also discussed. Certified Questions Two questions from the current lawsuit were certified to the Utah Supreme Court. Both questions' are based largely on the Either or Both Provision. The first question asks whether it is up to the member or the party to choose how the member of the party seeks nomination: In interpreting Utah Code § 20A-9-101(12)(d), § 20A-9-406(3) and § 20A-9-406(4), does Utah law require that a Qualified Political Party (QPP) permit its members to seek its nomination by “either” or “both” of the methods set forth in § 20A-9-407 and § 20A-9-408, or may a QPP preclude a member from seeking the party’s nomination by gathering signatures under § 20A-9-408? The second question asks whether the LG must revoke the QPP status of a political party that has elected to be a QPP but has not- satisfied one or some of the requirements of a QPP, such 'as those listed in Utah Code § 20A-9-101(12): If a registered political party (“BPP”) that has elected to be' designated as a Qualified Political Party (“QPP”) fails to satisfy the requirements of a QPP, must the Lieutenant Governor treat that political party as an RPP under -Utah law? Utah Supreme Court Ruling on Certified Questions On April 8, 2016, the Utah Supreme Court issued a ruling on the first certified question. The Court concluded that the Either or Both Provision requires a QPP to permit the member, not the party, to choose which path to take to the party’s nomination. The Court noted that “to meet the definitional requirements of a QPP, a political party must permit its members to seek its nomination by ‘choosing to seek the nomination by either or both’ the convention and the signature process.” The Court stated that it could not accept the URP’s first assertion — that the language of the Either or Both Provision actually permits the party, not the member, to choose the path to the ballot— because that argument “simply ignores the structure of the statutory language .... ” The Court also held that allowing the member to choose the path to the ballot was in harmony with Utah Code §§ 20A-9-406(3) and -406(4). In rejecting the URP’s argument that allowing the member to choose the path to the ballot interfered with the URP’s internal procedures, the Court noted that “[t]he statute does not require the [URP] to seek certification as a [QPP], and it does not purport to mandate the adoption of any provisions in its constitution, bylaws, rules, or other internal procedures.” “However, if a party seeks certification as a QPP, it must comply with the statute’s requirements.” The Court also stated that it “harbor[ed] some doubt as to whether the [URP] has raised any legitimate constitutional arguments that the State may not regulate the election process and favor particular measures to increase access to the ballot.” Finally, the Court declined to answer the second question because it was “purely hypothetical and not ripe for review.” “[T]here are multiple options available to the [URP] once this court’s interpretation of the QPP statute is published, and it is not clearly established in the record which of those the party will choose.” The Court stated that there was no process identified “by which the [URP] could or would revoke the membership of a non-compliant candidate.” In fact, the Court noted, “counsel for the [URP] in this case made the following statement to the federal district court on February [4], 2016: ‘If the state law says that we have to allow both routes and if that is what the Supreme Court decides and if we have elected to be a QPP, then we would have to figure a way how to change our constitution and by-laws to conform to the state law.’ ” The Court stated that the “differing and hypothetical indications” of the URP’s “future behavior” discouraged the Court from “offering] an advisory opinion on the future obligations of the [LG], where such advice would have to account for predicted future behavior of the party.” URP’s Constitution, Bylaws, and Rules The URP is a Utah RPP. The URP’s candidate selection process includes caucus meetings, nominating and organizing conventions, and a primary election under certain circumstances. The URP’s Constitution provides that “Party membership is open to any resident of the State of Utah who registers to vote as a Republican and complies with the Utah Republican Party Constitution and Bylaws, and membership [requirements] may be further set forth in the Utah Republican Party Bylaws.” The URP’s Bylaws require that candidates running for “any federal or statewide office” must “sign and submit a certification ... and a disclosure statement.”The certification states that the candidate “will comply with the rules and processes set forth in the Utah Republican Party Constitution and these Bylaws _” The disclosure statement must state that either: (1) “I have read the Utah Republican Party Platform. I support that Platform and accept it as the standard by which my performance as a candidate and as an officeholder should be evaluated. I certify that I am not a candidate, officer, delegate nor position holder in any party other than the Republican party [sic].” Or (2) “I have read the Utah Republican Party Platform. Except for the provisions specifically noted below, I support that Platform and accept it as the standard by which my performance as a candidate and as an officeholder should be evaluated. I certify that I am not a candidate, officer, delegate nor position holder in any party other than the Republican party [sic].” The URP’s nominating convention procedures require that delegates be notified of any candidate’s failure to submit a Platform disclosure statement immediately, pri- or to balloting for that candidate’s office. Except for candidates running unopposed, delegates to the nominating convention vote for URP nominees only after substantive speeches are made either by the individual candidates or on their behalf. The URP’s Constitution and Bylaws dictate the voting procedure for the nominating conventions, mandating multiple ballots for each elected office until the field is winnowed, to the top two candidates, or until a candidate receives 60% or more of the delegate’s vote. The URP’s Constitution provides that “[a] candidate for an office that. receives 60% or more of the votes cast at any point in the balloting process at the state nominating conventions shall proceed to the general election.” If no candidate receives 60% or more of the delegates’ vote at convention as to a particular elected office, the URP nominates the top two candidates to run in a primary election. URP’s Additional Statements of Position After the Utah Supreme Court issued its ruling on the certified questions, the URP was asked to file a memorandum: - Stating whether URP claims the'statute, as interpreted by the Utah Supreme Court 'in Utah Republican Party v. Cox, 2016 UT 17 impermissibly burdens the party; - Stating whether the URP will “comply with the requirements of the QPP statute as confirmed in [the] opinion,” Utah Republican Party, 2016 UT 17 [¶] 11, and if so, which relief sought by various parties would be moot; - Identifying any URP rule, regulation, procedure, bylaw or other provisions which expressly prohibits, limits, or penalizes a member from using the signature gathering process and attaching the identified materials; - Identifying any process by which the Utah Republican Party may revoke a person[’]s membership and attaching the identified materials; - Stating whether the URP has commenced any such revocation proceeding as of the date of this docket text order and attaching all documentation of it; The URP filed its memorandum on April 13, 2016 (“April 13 Response”). The URP stated that the Utah Supreme Court’s interpretation of the Either or Both Provision impermissibly burdened the URP’s rights and “impostes] internal candidate selection procedures on the URP that conflict with those set forth in its Constitution arid Bylaws.” The URP stated that it “will NOT” comply with the Utah Supreme Court’s interpretation of the Either or Both Provision. In earlier briefing the URP had taken this position, stating that it had “notified its members that it intends to select its candidates through the convention process rather than the signature gathering process, and that any person who seeks to avoid the convention selection process by declaring candidacy through the signature gathering process will be' in violation of the [URP] rules and his or her membership revoked.” In the URP’s April 13 Response, the URP clarified that its position was that “[a] member’s act of gathering signatures does not disqualify him or her from also seeking the party’s nomination through the convention process. Only if that member fails to also satisfy the party requirement to obtain at least 40% of the convention votes for that office would a member be barred from seeking the nomination.” The URP stated that the LG’s “act of certifying candidates who qualify for the ballot only by gathering signatures violates the [URP]’s right to freedom of association, whether or not the [URP] terminates the member who is certified.” Because the URP had stated it would revoke the membership of any URP candidate using the signature gathering process, the URP was asked about the revocation process. The URP stated that it had “not commenced any revocation proceeding against a member as of April 11, 2016,” but that if it needed to do so, the proceeding would follow the procedures outlined in Roberts Rules of Order. The URP quotes several pages verbatim from the Roberts Rules of Order. DISCUSSION The URP seeks summary judgment on two claims: (1) the constitutionality of SB54 and (2) invidious discrimination. Each of these claims will be discussed below. Prior to 'discussing those claims, however, there are three non-merits arguments that must be addressed. Those arguments are preclusion, ripeness, and standing. Preclusion Issues Presented The 75 Order denied the LG’s and the UDP’s preclusion defenses, but did not rule whether claim preclusion bars the URP claims regarding the Either or Both Provision. The 75 Order also did not rule on the LG’s argument that claim preclusion bars “all [URP] claims.” The LG does not articulate what it means by “all claims,” but because the 75 Order denied all arguments ■■ that were-not expressly addresséd, the only claim preclusion argument that will be addressed in this Memorandum Decision and Order is the argument that claim preclusion bars URP’s claims with respect-to the Either or Both Provision.-That argument is construed to mean that claim preclusion bars the URP from pursuing subparagraphs 73(b) through (g). The UDP also argues that issue preelusion bars URP from pursuing subpara-graphs 73(b) through (g). Claim preclusion will be discussed first, followed by discussion of issue preclusion. Claim Preclusion Does Not Bar URP Claims in Subparagraphs 73(b) through (g) Claim preclusion “ensures finality of decisions.” “A final judgment on the merits bars further claims by parties or their privies based on the same cause of action.” Claim preclusion “prevents litigation of all grounds for, or defenses to, recovery that were previously available to the parties, regardless of whether they were asserted or determined in the prior proceeding.” Claim preclusion applies when the following elements are present: (1) a final judgment on the merits in an earlier action; (2) identity of parties or privies in the two suits; and (3) identity of the cause of action in both suits. With respect to the first element, all parties agree that the First Lawsuit resulted in a final judgment on the merits. The second element also is satisfied since there is “identity of parties” in the two lawsuits. The URP was a party to the First Lawsuit and initially sued the Governor and LG in their official capacities. While it is true that the intervenors in the two cases are different, and that the Governor was dismissed from the current case, the named parties at the commencement of each suit are identical — the URP, as plaintiff, sued the Governor and the LG. Often the “identity of parties” element is asserted against a plaintiff who did not take part in a prior lawsuit, and a defendant will argue that the plaintiff was in “privity” with the plaintiff who was a party in the prior lawsuit. Thus, as to the UDP, this element is not satisfied because the UDP was not a plaintiff in the First Lawsuit and likely cannot be said to be in “privity’ with the URP. However, claim preclusion is not raised as to the UDP. It is raised as to the URP. Thus, as to the URP, the “identity of parties” element is satisfied. The third element is not satisfied, however, because the causes of action are not identical in both suits. The LG and the UDP argue that the causes of action are identical because the wording of subpara-graphs 73(b) through (g) is identical to some of the language in the complaint in the First Lawsuit. The LG and the UDP argue that the URP now makes the same assertions it made in the First Lawsuit, such as the contention that “the State” has taken away the URP’s right to communicate its endorsement on the general election ballot and has taken away the URP’s right to determine for itself the candidate selection process that will produce a nominee who represents the URP’s platform. The LG and the UDP are correct that the wording in both complaints is the same, but this case arises in a different factual context than the First Lawsuit. The words are directed at and allegedly descriptive of different alleged defects in SB54. In the First Lawsuit, the URP had not made a statement that its candidates would be prohibited from following the QPP signature gathering path. The URP now takes that position. In the First Lawsuit, the LG had not. stated whether the URP could bar its candidates from pursuing signature gathering. Now the LG has issued at least two statements on that question, stating that the URP must allow the member to have access to the primary ballot by -gathering signatures. And in the First Lawsuit, the Utah Supreme Court had not interpreted the Either or Both Provision. Now a ruling from the Utah Supreme Court states that it is the member’s right to choose their path to the ballot. Thus, the central issue in this case is different from the issues presented in the First Lawsuit. Here, the central question is whether it is a “severe” burden on the URP’s rights for the LG to allow a URP candidate to gather signatures to obtain primary ballot access when the URP has expressed a desire that its candidates obtain primary ballot access only by participating in the URP’s convention. To be sure, claim preclusion does not apply with respect to the URP' claims about the Either or Both Provision. The Either or Both Provision provides that a QPP is a registered political party that: (d) permits a member of the registered political party to seek the registered political party’s nomination for any elective office by the member choosing to seek the nomination by either or both of the following methods: (i) seeking the nomination through the registered political party’s convention process, in accordance with the provisions of Section 20A-9-407; or (ii) seeking the nomination by collecting signatures, in accordance with the provisions of Section 20A-9-408; The parties disagreed as to the interpretation of this section. The UDP and the LG agreed-that the proper interpretation was that a QPP must allow the member to choose the method of nomination. But the URP argued that the proper interpretation was that the party may choose the method of nomination. The URP took the position that as long as the party provided either of the methods identified in the statute — convention (-407) or signature gathering (- 408) — the party has satisfied the requirements of the Either or Both Provision. The Utah Supreme Court has now held that the statute gives the member the right to seek a place on the primary election ballot by signature gathering, by. the convention, or both. The Supreme Court’s definitive interpretation of the Either or Both Provision places this case in a different context than the First Lawsuit. Also, the Either or Both Provision was not squarely at issue in the First Lawsuit. While it is true that some discussion took place about this provision in the October 27 hearing, the proper interpretation of the .Either or Both Provision became ripe only after the conclusion of the First Lawsuit when the URP formally declared to the LG that it would restrict its candidate-selection procedures to the convention method, thereby prohibiting any URP candidate from gathering signatures. That position was different than the LG’s interpretation, and the LG stated that he disagreed that URP could make this restriction. Later, the LG’s Office stated that if the- URP revoked Sen. Weiler’s party membership for gathering signatures, the URP would no longer qualify as a QPP under Utah election law. Subsequently, on January 19, 2016, the LG’s Office issued a Voter and Candidate Clarification memorandum which modified the position taken in the letter to Sen. Weiler. The LG’s Office no longer took the position that it would revoke the URP’s QPP status if it refused to allow its candidates to gather signatures. Rather, the LG’s Office took the position that the URP could still remain a QPP if it restricted its candidate selection process to only the convention route. The LG’s Office has also taken the position that signature-gathering candidates from the URP will still have access to the ballot. ‘After the First Lawsuit ended, several URP members have declared their intention to gather signatures - and have been qualified by the LG as having gathered enough verified signatures to appear on the URP’s primary election ballot, including Sen. Weiler and the LG’s running mate, Governor Gary R. Herbert. These events were not addressed in any of the rulings of the First Lawsuit. Thus, arguments regarding the Either or Both Provision are not subject to claim preclusion because they were not “previously available to the parties” and only became ripe after the conclusion of the First Lawsuit. Even though the URP alleges the same rights are threatened, the factual circumstances and the issues raised in this lawsuit are different. Therefore, the “identity of the cause of action” element is not satisfied and claim preclusion does not bar URP from pursuing its claims under sub-paragraphs 73(b) through (g). Issue Preclusion Does Not Bar URP Claims in Subparagraphs 73(b) through (g) “In contrast to claim preclusion, issue preclusion [also known as collateral estoppel] bars a party from relitigating an issue once it has suffered an adverse determination on the issue, even if the issue arises when the party is pursuing or defending against a different claim.” Issue preclusion applies when the following elements are present: “(1) the issue previously decided is identical with the one presented in the action in question, (2) the prior action has been finally adjudicated on the merits, (3) the party against whom the doctrine is invoked was a party, or in privity with a party, to the prior adjudication, and (4) the party against whom the doctrine is raised had a full and fair opportunity to litigate the issue in the prior action.” The second and third elements are satisfied. The parties agree that the First Lawsuit was finally adjudicated on the merits and URP — the party against whom issue preclusion is invoked — was a party to the First Lawsuit. However, as discussed above, the issues raised in this lawsuit are not identical to the ones presented in the First Lawsuit and therefore, the URP did not have a full and fair opportunity to litigate them. Consequently, the first and fourth elements of issue preclusion are not satisfied and URP is not barred under the doctrine of issue preclusion from pursuing its claims under sub-paragraphs 73(b) through, (g). Because neither claim preclusion nor issue preclusion apply to bar URP from pursuing its claims under subparagraphs 73(b) through (g), the preclusion arguments fail. This conclusion fully resolves the 37 UDP MJP and the 38 LG MJP. Accordingly, those motions are DENIED. The Issues are Ripe The LG argues the URP’s claims are not ripe “because URP’s rules and internal procedures are not in conflict with state law.” In other words, the LG argues that the URP’s Constitution and Bylaws do not restrict candidates from gathering signatures, and do , not require revocation of membership if a URP candidate decides to gather signatures. Instead, the LG argues, the URP Constitution provides that membership is open to all who register to vote as a Republican and commit to comply with the URP Constitution and Bylaws. The LG further argues that the URP Bylaws require a URP candidate to agree to comply with the procedures governing the URP convention and must submit a disclosure statement stating the candidate either supports or partially supports the URP Platform. But “[conspicuously absent from URP’s Bylaws is any restriction on candidates collecting signatures to access the primary ballot.” Therefore, the LG argues, the URP’s claims “depend on contingent future events” and are not ripe. The URP disagrees, arguing that the claims are ripe for adjudication because signature gathering has already begun and the LG “has stated that he will overrule any objection by the [URP] to nominees who bypass the convention method in favor of signature gathering.” This, the URP argues, constitutes “injury in fact” because it is a “threat of enforcement” of an unconstitutional law. The URP argues that if it is required to wait until future events occur, “the 2016 primary election will have already concluded with the risk that the entire election could be invalidated.” “In order for a claim to be justi-ciable under Article III, it must present a live controversy, ripe for determination, advanced in a ‘clean-cut and concrete form.’” The ripeness inquiry, however, “focuses not on whether the plaintiff was in fact harmed, but rather whether the harm asserted has matured sufficiently to warrant judicial intervention.” “First Amendment rights of free expression and association are particularly apt to be found ripe for immediate protection, because of the fear of irretrievable loss.” “The principle that one does not have to await the consummation of threatened injury to obtain preventative relief is particularly true in the election context ... .” The election process is currently well underway. Political parties have already designated whether they will be a QPP and QPPs have indicated which political parties’ members may vote in their primary election. QPP candidates have filed their “notice of intent” to gather signatures and have filed declarations of candidacy to participate in the QPP’s convention and gather signatures. The time for filing objections to QPP candidates’ declarations of candidacy has passed. QPP candidates have gathered signatures and submitted those signatures for verification. The URP convention is scheduled to take place on April 23, 2016, and the LG must indicate to the URP which signature-gathering candidates have qualified for the URP’s primary election ballot on April 22, 2016, the day before the URP convention. On April 29, 2016, ballot forms must be at the printer so that by May 13, 2016, ballots may be mailed to overseas and military voters. Primary elections will be held on June 28, 2016, just two months away. It would be imprudent to defer the claims raised by the URP until they ripen into the most complete and full injury. At that point, conventions will be past, ballots will be printed, and the election process will be at an advanced stage. Such a delay could risk invalidation of election results. While the LG is correct that there is nothing in the URP Constitution or Bylaws that expressly prohibits a candidate from gathering signatures, the URP has stated it will revoke the membership of signature-gathering candidates. The URP reaffirmed its position after the Utah Supreme Court definitively ruled on the interpretation of the Either or Both Provision, holding that it is the member’s right to gather signatures. The URP has stated it will challenge the placement of signature-gathering candidates on the URP primary ballot. The LG has stated that it will place such candidates on the ballot despite the URP’s objection. These opposing positions present the risk that a candidate may appear on the URP’s primary election ballot as a member of the URP, in spite of a URP claim that the candidate is not a member, which would raise the issue of the URP’s associational rights. The pressing election schedule and the need for an orderly election process require current consideration of the issues. Moreover, even if there were no risk that a non-member candidate would appear on the URP’s primary election ballot, the URP has indicated that it is injured by the existence of the signature gathering option because it takes away the URP’s right to endorse nominees for office, to control the use of its name and to determine its own candidate selection process, and also burdens its associational rights. The substance of these arguments is addressed below. No statement about their sufficiency is made here. For purposes of ripeness, these alleged injuries do not have to take place in order for the URP to have raised a justiciable claim, especially in the context of the First Amendment. The URP’s claims are ripe for review. Standing Issues and Doctrine Two standing arguments are raised in the briefing on the 41 URP MPSJ. One is raised by the LG and the other is raised by the. URP. The LG argues that the URP does not have standing to bring claims without a URP member joined in the lawsuit. The URP argues the UDP does not have standing to assert the LG’s legal rights and interests and participate in the briefing on the 41 URP MPSJ. Each of these arguments is incorrect. The U.S. Supreme Court has explained that standing must be established by three elements: (1) “injury in fact,” by which we mean an invasion of a legally protected interest that is “(a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical^]” (2) a causal relationship between the injury and the challenged conduct, by which we mean that the injury “fairly can be traced to the challenged action of the defendant,” and has not resulted “from the independent action of some third party not before the court[;]” and (3) a likelihood that the injury will be redressed by a favorable decision, by which we mean that the “prospect of obtaining relief from the injury as a result of a favorable ruling” is not “too speculative[.]” These elements.are the “irreducible minimum” required by the Constitution. The URP has Standing in the Case The three elements of standing are satisfied with respect to the URP. First, the URP has pleaded concrete and particularized injury that is actual or imminent by asserting that its First Amendment rights would be impacted by the LG’s decision to allow URP candidates access to the ballot against the URP’s wishes. Since the LG has indicated it will authorize signature-gathering candidates to appear on the primary election ballot despite the URP’s objections, there is an actual potential injury. Second, the URP has demonstrated a sufficient causal relationship between the alleged injury and the LG’s actions. The URP alleges that the LG’s placement of signature-gathering candidates on the ballot will injure the URP if the application of the law is unconstitutional as to the URP. Third, the injury will be redressed if the LG is prohibited from enforcing the law as to the URP. Thus, the standing elements are satisfied with respect to the URP. The LG argues that the URP lacks standing because it has not joined a member of the URP in its claims. As the LG recognizes, a political party has constitutional interests that are distinct from the constitutional interests held by a candidate seeking the nomination of that political party. The URP has established standing as an entity because it has rights that are separate from the interests of an individual member-candidate. The LG raises valid distinctions between the rights of candidates and parties, but these points do not establish a lack of standing for the URP. Instead, they show that a URP candidate may not have a justiciable claim against the URP until the URP actually revokes the candidate’s membership as the URP has indicated it may do. As discussed more fully below, that claim is not presented here. This Memorandum Decision and Order deals only with the claims of the URP as an entity, which the URP has standing to raise. The UDP has Standing on the Motion The URP’s argument that the UDP lacks standing “to oppose the [41 URP MPSJ] Motion” is rejected for three reasons. First, the URP makes no effort to explain how the three elements of standing — injury, causation, and redressa-bility — are not satisfied. Instead, the URP argues that the LG is fully capable of defending the law and does not need the UDP’s help to do so. The URP makes this argument because it believes the UDP is merely advancing the rights of “the State,” and in that circumstance, a different standing analysis applies. But this is the second reason URP’s standing argument fails: the UDP is not seeking to advance the rights of a third party. Rather, it is seeking to advance its own legal rights and to urge the LG to enforce the election laws equally and consistently as to all political parties so that one political party does not have an advantage over another. As a political party in the State of Utah and as a party in this lawsuit, the UDP may take a position that is contrary to the URP and assert arguments as to the URP’s interpretation of the law — even if UDP is an intervenor-plaintiff with no asserted claims against the URP. Third, the URP’s argument is rejected because it is an effort to reargue why UDP should not have been allowed to intervene. URP’s effort to revisit intervention is improper. The other arguments URP raises with respect to standing, such as the argument that UDP should be real