What he said: 40 quotes from Judge David Nuffer during the SB 54 preliminary injunction hearing

Various parties have attempted to spin what Judge David O. Nuffer said or didn’t say during the five-hour SB 54 hearing that took place on April 10, 2015.  The 135-page transcript was released last Friday.  The following is a summary of actual quotes, organized by topic, from Judge Nuffer during the hearing.

Utah State Senator Todd Weiler
By Todd Weiler


  1.  “I’m here not to enforce your [party] bylaws or your [party] constitution, I’m here to enforce our bylaws and Constitution. Every attorney in the room and I took an oath to uphold the Constitution and the laws of the United States. (Page 42)


  1. “If you elect to be a registered political party and continue in that route, then you’re not forced to share your primary with unaffiliated voters.” (Page 49)
  1. “If you are a qualified political party by the statute … that primary election must be open to unaffiliated voters. If you choose the registered political party path, that primary election is closed to your party members. Am I not right?” (Page 51)
  1. “You have an out on the RPP path, on the registered political path. No unaffiliated voters will be in your primary election.” (Page 53)
  1. “The QPP side forces you to accept a group. The RPP side does not force you to accept a group. And that’s how I read the thread of these cases from the Supreme Court. We tried to do our best to find the consistency. And the cases that force a party to accept people in involuntarily find a violation of the freedom of association. The cases which restrict the pool from which a choice may be made do not strike down the statutory provision. So I don’t see the RPP path as having a constitutional objection. Now if you could show me that both the RPP and QPP paths had constitutional objections, then I would say we might have a present facial challenge and we would be rolling except for the problem of your pleadings.”  (Pages 56-57)
  1. “But you do have two paths to the ballot as a party. And there appears to me to be no constitutional objection that we’ve discussed yet on the RPP path. Tell me how I’m wrong.” (Page 57-58)
  1. “How? How does the RPP path create the constitutional burden — an unconstitutional burden? * *  * Show me a case. Show me a case that says that.  * * * You’re the movant, Mister. You know, you’re trying to convince me that there’s a constitutional issue here.“ (Page 58-59)
  1. “And the party has a choice here under the RPP route to have other members of other parties vote in their primary. There’s not a forced inclusion, and there’s even an opportunity for greater inclusion under SB54.” (Pages 96-97)


  1. “I don’t think I want to be the first court in the country to say that plurality is a constitutional dimension. So I’m hoping that you’re going to pull the case that I haven’t read yet that tells me this.”   (Page 79)
  1. [In response to Mr. Mumford arguing that “barring political parties from endorsing and opposing candidates not only burdens their freedom of speech but also infringes on their freedoms of association –depriving a political party of the power to endorse suffocates them:] “Well, if this statute did that, I would probably be right with you, but it doesn’t. It says, it just provides for plurality election of your candidate in the primary. You come out of the primary with somebody who got the most votes, not a majority of the votes. Where is the case that tells me that is unconstitutional?” (Page 81)
  1. “What I’m saying is to find that the plurality provision, the requirement in both the RPP and QPP processes that let’s someone with less than a majority of the party’s votes get to the ballot … I want to know if that has ever been held to be constitutionally suspect…. I have concerns about it personally, but I don’t see anything in case law. I see your general arguments about the philosophy, about the concepts, about the interests. *** I don’t have any precedent at all saying that a non-majority primary is a denial of a Constitutional right. The candidate is still — and we’re going to get to member of the party and your endorsement of the party platform and all that. That’s another issue. But per se, is letting someone to the general ballot without the majority of a party’s vote unconstitutional? I’m asking for a case. “ (Page 82)
  1. “Has there ever been a decision holding that a primary election decided on less than a majority is a violation of anybody’s Constitution?” (Page 85)  “We’ve got case law and mandatory primary. It’s clear. There’s no case law on plurality.” (Page 90)
  1. “But can you show me a case that tells me that any one of those provisions of SB54 is constitutionally infirm? I know it might substitute the judgment, but that’s general language. And I have to look at cases that are factually similar that are on point. And I don’t think that it’s true that a state is not free in some areas to make decisions the party doesn’t agree with. It’s clear that the party can regulate elections — or the state can regulate elections. “(Page 94)


  1. [In response to Mr Mumford stating, “You are the only thing that is standing between us and the State. It’s like Hans, it’s like Princess Leia. You’re our only hope:] “Well, I am highly complemented. And I am wearing a robe. But you better talk to Carrie Fisher. You understand what I’m asking for, and you’re asking me to step outside what I’m saying is the case law in the precedent, take these principles, which I agree with you are expressed in these cases, they’re very high sounding, large scale principles and philosophies, and apply them to say that a system which allows someone to get to the general election ballot on less than a majority vote is a severe burden and unconstitutional action or law. And I have to act on precedent. So I think you and I are just on different points here. I’m on Alderaan, and you are on some other planet. “ (Pages 83-84)


  1. “States have the authority to regulate political parties as long as it’s not in an unconstitutional matter. So let’s go through the constitutional violations. “ (Page 37)
  1. “I’m not going with you on substitution of judgment as a constitutional barrier, okay? *** I’m saying you haven’t shown me a constitutional doctrine that gets me to the facts.” (Page 97)
  1. “I’m looking for a constitutional doctrine that says the State can never regulate a party, which is essentially what your substitution of judgment argument is. And the cases say just the opposite in my view, that there’s a permissible level of regulation. And I believe, contrary to your interpretation, that one of those choices is primary or convention. State can pick one, ban the other.”  (Pages 97-98)
  1. “Now, I think you’ve taken the position that if you take the RPP out you can’t have the convention. Nothing in the statute says that. It isn’t part of the process, but it doesn’t say you can’t have one. “ (Page 99)


  1. “The party regulates its membership. The voter registration process lets people self-declare affiliation. But the State cannot and as I read it does not intend to regulate membership in your party. In fact, I think one of the statutes that we looked at said that the state — the party determines its conditions for membership.”And you raised I think when we were talking yesterday the problem of someone who applied to be an officer — no, wanted to be a candidate in the Republican Party and was simultaneously an officer in another party. And I don’t know what formalities occur when someone wants to be a member of the Republican Party. But couldn’t you require that they sign something that says that when they agree to participate in meetings that they’ll have a prayer, a pledge and they’ll agree to a platform and that they will not be members of or indicate themselves as affiliated with another party? Don’t you regulate all of that?”  (Page 103)
  1. “Well, what provision of SB 54 changes your ability to regulate your membership and to prohibit people from riding two parties’ horses?” (Page 104)
  1. “Why couldn’t you require this of every member? Why couldn’t you just substitute candidate for member? I mean, it seems like you would want to do that.” (Page 106)


  1. “We know the statute. We know the constitutional principles. While we’re not likely to see much change in the case going forward, this is a preliminary decision as to the special circumstance of a motion for preliminary injunctive relief.” (Page 120)
  1. “There’s no doubt that the issues in this case are serious, substantial, difficult and doubtful to make the issue ripe for litigation deserving more deliberate investigation. That said, a relaxed standard on likelihood of success still means there must be some showing of likelihood of success.” (Page 120)
  1. “[T]here is no showing of a valid as applied challenge at the current time, and we’ll get into that in a moment.” (Page 120)
  1. “[T]his is a case I believe in which it cannot be said that no set of circumstances would result in a constitutional outcome under this statute. There are constitutional outcomes under this statute. Therefore, if it had been pled, a facial challenge would have failed.” (Page 122)
  1. An as applied challenge has been pled, but because there is a constitutional outcome and because … the party has not elected the QPP route, which in my view is the only possible unconstitutional burden and outcome, we’re not ripe for an as applied challenge.” (Page 122)
  1. “The various issues that we’ve been called on to examine here today and in the briefing, taking away the party’s right to certify its nominees, I don’t see that there is a constitutional issue there. * * * A State may require parties to use the primary format for selecting their nominees. If the State can require the primary election and administer the primary election, the State can certify the successful candidates out of that election.” (Page 123)
  1. “There is no right to communicate the party’s endorsement on the general election ballot. * * * Ballots serve primarily to elect candidates, not as forums for political expression.”  (Page 123)
  1. “Not all regulation of internal processes is prohibited or constitutionally questionable. * * * But the general constitutional or the general platitudinal statements … do not constitute legal doctrine in which I can restrain enforcement of a state law.” (Pages 123-24)
  1. “Issues about the possibility that party nominee may not necessarily be a party member or committed to the party platform are easily resolvable by the party membership requirements.” (Page 124)
  1. “The State has nothing to say about who’s the member of a party, at least under this statute, except to say it’s determined in accordance with party rules.” (Page 124)
  1. “The substitution of judgment argument also falls under those general statements, and I don’t see a constitutional doctrine of substitution of judgment that applies on the fact circumstances presented by Senate Bill 54.” (Page 124)
  1. “There was some discussion … about opening the party to unknown means of manipulating the process. I don’t find that that presents a constitutional burden by the case law that’s been presented to me.” (Page 124)
  1. “I find no case law indicating that there is a constitutional deficiency in sending a party’s candidate to the ballot by a plurality vote out of a primary election.” (Page 125)
  1. “There are many cases on what I think is the most important issue in this case, which is the requirement under the qualified political party process that persons unaffiliated with the party are necessarily included in the primary election. In my view the case law would say that an as applied challenge might be successful, but we’re not there yet.” (Page 125)
  1. “It is a severe burden on freedom of association as applied to political parties to require them to allow unaffiliated voters to vote because of forcing association. * * * [T]he State may not force unwanted association on political parties.” (Page 125)
  1. “The political parties don’t have unfettered freedom to decide every aspect of the election of the process, but a state does go too far when it forces the party to associate with others involuntarily.” (Page 125)
  1. “But the difference is in this case Senate Bill 54 … pushes the unaffiliated voter in. The voter under past practice would make the choice to opt in. And it is the State’s pushing or forcing which is questionable constitutionally. This is potentially the only severe burden that I see. No cases ever upheld in my view this sort of provision when presented directly to the Court. But at this stage there are alternative paths so a facial challenge, again not pled for, cannot succeed, and an as applied challenge is not ripe.”  (Page 126)
  1. “I didn’t see any evidence in the record so far, but again, the record is not fully developed, that there was any independent, bargained for, compromise with regard to the unaffiliated voter provision. So at the current time looking at the severability clause, I would say that 101-12A is severable.” (Page 127)
  1. “No unconstitutional conditions are presented on the current facts. No injunction will issue.” (Page 128)
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