Utahns appear locked in an endless struggle over SB54 – the controversial 2014 legislation compelling political parties to adopt a signature-gathering path to the primary election, in addition to the traditional caucus and nominating convention route.
Both sides acknowledge conspicuous problems with the current law, but a consensus resolution to the conflict does not appear anywhere on the horizon.
Senator Dan McCay, R-Riverton, was an original sponsor of SB54, which was passed as a compromise with the “Count My Vote” group to preserve the caucus system if a dual path through signature-gathering was set up. Over the years, however, McCay and others have sponsored several bills to repeal or significantly amend SB54. [Despite several attempts, Sen. McCay never responded to interview requests for this article.]
This year’s attempt, titled, Election Process Amendments, or SB205, was sponsored by McCay and House Majority Leader Rep. Francis Gibson, R-Mapleton. The bill essentially gives political parties the choice to decide between four different candidate nominating processes. One of the paths allows for a party to choose their nominee at convention if the candidate receives two-thirds support from delegates. If two-thirds vote is not secured, then the party would send the two-top vote-getters at convention to the primary.
Other sanctioned nominating paths in SB205 set up the possibility for preservation of the dual path currently protected by law, but that would be up to respective party leadership to decide.
Taylor Morgan, director of Count My Vote, is not worried with McCay’s repeated attempts at repeal. “This is just Dan’s annual legislative attempt to thwart SB54. This has been happening every year for the past seven years it seems like.”
Morgan is not wrong. SB205 is almost an exact copy of McCay’s proposed legislation last year; although, he seems to be slowly gathering support with every subsequent attempt. The 2020 repeal bill died in committee without consideration. This past legislative session, McCay’s bill won support from the Senate Revenue and Taxation Committee by a margin of seven to two, including Senator Curt Bramble, R-Provo, the other original sponsor of SB54.
Bramble told the Salt Lake Tribune after the bill passed out of committee in February that he thought McCay’s bill had “a reasonable chance” of winning a majority in the Senate. A few days latter the bill was voted on twice by the full Senate. First it was defeated by a vote of 15 to 12 but was reconsidered after some confusion manifested among the senators surrounding the first vote. The second vote passed 18 to 11, leaving the bill just one more Senate hurdle to proceed onto the House. But it died at the end of the legislative session without being taken up again.
McCay and SB54 opponents might be closer to success than most might realize. The 2019 and 2018 legislative sessions saw enough support in the House to pass a full repeal of SB54. If the Senate ever moves forward on a repeal effort, the House will surely concur. However, veto proof majorities are not certain, and Governor Spencer Cox has yet to indicate whether he would support or veto a SB54 repeal effort.
Morgan and Rich McKeown, executive co-chair of Count My Vote, strongly warned that if the legislature ever repeals the SB54 compromise they will bring back their initiative. “We like the dual path and voters like it,” Morgan said, “but if legislators were to undermine or get rid of SB54 then we would be forced to do a new initiative to get rid of the caucus and convention system.”
McKeown added, “There are a number of different options that we could take and Count My Vote has been persistent and regular in our efforts to reform Utah’s election system and preserve peoples’ choice. Regardless of what might happen, we intend to continue to reform it and make it more preferential for everybody.”
There are a few defects in SB54 that everyone acknowledges.
“Count My Vote recognizes there are real clear, obvious issues that we need to fix. For example: the signature thresholds are untenable, they are way too high,” Morgan said. These are a consequence of blunt changes in the law.
The original SB54 law has undergone some changes via court order over the years. The Utah Republican Party argued that the law was unconstitutional and sued the state. The five year lawsuit nearly bankrupted the Utah GOP as they continued to appeal to higher courts until the U.S. Supreme Court finally refused to hear the case in March 2019.
Although several federal courts rejected the party’s arguments of unconstitutionality, some provisions in SB54 such as mandatory open primaries and the ability for candidates to gather signatures of unaffiliated voters for a respective party’s nomination were struck down by judges.
Because of this, Morgan protested, “we are left with a very high, untenable threshold for candidates to gather signatures, especially for statewide candidates.”
“Candidates for state auditor or treasurer, for example, would usually only spend between $50,000 to $75,000,” Morgan continued. “Now if they want to gather signatures, they would have to spend close to a quarter of a million dollars to hire signature gatherers because volunteer efforts’ repeated failed attempts deem it prohibitive.”
McCay also takes issue with what he calls the “growing signature industry.” He told the Deseret News last February that one of the unintended consequences of SB54 is a “record-breaking” rise in initiatives and referendums.
“And those initiatives going up is our really No. 1 concern with the signature industry,” he said. McCay also points out that millions of dollars are spent on gathering signatures, yet “99.3% of the elections still get won by candidates who qualify for the ballot through the convention process.”
Morgan takes issue with McCay’s assertions, calling them a “red herring and not a real argument.”
“Dan is trying to use issues with initiatives and signature-gathering as pretext to get rid of SB54, and that’s just nonsense. There is no growing signature industry and that’s part of the problem. It’s too expensive to meet the signature thresholds because there isn’t a robust signature industry.”
SB54’s last-minute compromise with County My Vote made it possible to win a party’s nomination with less than a majority of voters, a result called plurality. This has happened in at least two high-profile races so far.
The first was a special election in 2017 to fill the vacancy in Utah’s 3rd Congressional District left by Rep. Jason Chaffetz’s unexpected retirement. Chris Herrod won the party convention by a landslide, but former Provo mayor John Curtis and political newcomer Tanner Ainge qualified for the primary ballot through signature-gathering.
Curtis ended up winning the Republican primary and the party nomination with his 43% to Herrod’s 32% and Ainge’s 24%. Resulting in over a majority of primary voters collectively supporting a candidate other than the victor.
Utah’s gubernatorial race last year is the second instance of plurality and was arguably more consequential to the state.
Four candidates and their running mates qualified for the GOP 2020 primary. Former House Speaker Greg Hughes and former Lt. Gov. Spencer Cox secured spots respectively on the ballot after prevailing over five other candidates at convention; although, Cox also gathered the required signatures. Additionally, former Governor Jon Huntsman Jr. and former Utah Republican party chair Thomas Wright each gathered signatures as well even though they were defeated at convention.
Cox ended up narrowly winning the Republican primary nomination with his 36% of the vote to Huntsman’s 35%, Hughes’ 21% and Wright’s 8%. Meaning that 64% of Utah GOP primary voters collectively ended up supporting a loser in the race.
Frustration is preeminent among Count My Vote when some blame SB54 for these unfortunate results.
Morgan explained that their second initiative in 2017 would have implemented a run-off to avoid winning by plurality. However, Count My Vote opponents used what Morgan referred to as “Utah’s quirky initiative law loopholes” to convince those who signed the initiative to remove their support afterwards, precipitating the failure of the initiative and the effort to fix problems in SB54 that persist to this day.
Revealingly, every major 2020 GOP candidate for governor save Huntsman complained about SB54. Hughes and Salt Lake County Councilwoman Aimee Winder Newton argued it should be repealed. Note, that they also opted not to collect signatures, so their arguments were central to the survival of their respective campaigns.
Wright and tech billionaire investor Jeff Burningham protested that collecting signatures was a waste of time, money and not meaningful voter engagement. Lastly, Cox bemoaned the fierce contention SB54 has caused and urged legislators to put it on the ballot for voters to provide some finality to the issue.
Regardless of the division and divisiveness that SB54 continues to fester among legislators and party insiders, Morgan is happy with how well the law has facilitated Utah’s elections overall.
“We’ve had more candidates running for office; we’ve had more primary elections because of SB54,” he said with pride. “Polling on this issue from 2014 to 2021 clearly shows that people strongly support SB54 even if it does have some problems.”
Count My Vote proponents also point to a recent voter participation analysis posted on Twitter by State Elections Director Justin Lee that found Utah to have the second highest voter turnout rate increase in the country between 2016 and 2020.
Morgan acknowledges that this analysis points to mail-in balloting as the primary driver of higher voter turnout rates, but feels SB54, same day registration and other things have influenced this long-sought improvement.
SB54’s leading objective was to increase voter engagement, but a thorough analysis to determine the true impact of the change aside from other factors remains to be conducted.
In the meantime, resolution to the SB54 conflict seems nowhere in sight. When asked about the prospects of future collaboration or negotiation between Count My Vote and state legislators to fix the obvious problems of SB54, Morgan didn’t know what to say.
“That’s a good question,” he said. “I don’t have an answer.”
Utahns appear to be in a classic western standoff regarding SB54. The stakes are high, both sides refuse to give an inch and it remains to be seen if a mutually agreed upon path forward can be found before a shootout starts.
Morgan ended our conversation with cautious optimism, saying, “We hope they would work in good faith with us, but we will see. We are working hard over the interim with legislators and legislative leadership, but the reality is that party and party activists are never going to support anything but full repeal. And that’s unacceptable to us.”
