Statement from Utah Republican Party Constitutional Defense Committee
Attorney Gene Schaerr Agrees to Assist Utah GOP in Constitutional Challenge to SB 54
Monday April 2, 2018–Salt Lake City, UT.
Don Guymon, spokesperson for the Utah Republican Party Constitutional Defense Committee (“CDC”), released the following.
On Tuesday March 20, 2018 Utah Republicans learned that a split decision by a 3-judge panel of the Tenth Circuit Court of Appeals had ruled against the Utah Republican Party’s First Amendment challenge to SB 54, the controversial Utah law, “Count My Vote” (CMV), that dictates how Utah political parties must nominate their candidates for public office.
Media attention has emphasized the Court’s 2-1 decision against the Party. Less attention has been paid to the substance of the decision and to Chief Judge Timothy M. Tymkovich’s remarkable dissenting opinion, which explains how SB 54 and CMV are in direct violation of the First Amendment. He further warned that “this scheme” appears designed to allow outsiders to “hijack the Party’s platform.”
Chief Judge Tymkovich also warns that the new law essentially means an end to local, neighborhood-driven politics in Utah. “In effect, the new procedures transform the Party from a tight-knit community that chooses candidates deliberately to a loosely affiliated collection of individuals who cast votes on a Tuesday in June.”
Contrary to several recent public statements from SB 54/CMV supporters, this challenge is not over. A 2-1 decision, in which a respected Chief Judge, like Judge Tymkovich, writes a thorough and deep dissent, gives the Party a real chance to challenge the result and make sure the Court’s decision is consistent with the U.S. Constitution.
Today, we are pleased announce that renowned constitutional attorney Gene Schaerr has formally agreed to assist the Party by taking the lead in seeking further review of this decision. The Party will soon be filing a petition with the Tenth Circuit asking all current members of the Court, not just the 3-judge panel, to weigh in.
Mr. Schaerr is known for litigating before the United States Supreme Court and several U.S. Circuit Courts of Appeals (including the 10th Circuit). Schaerr earned his law degree from Yale, and bachelor’s degree from Brigham Young University. He previously clerked for United States Supreme Court Chief Justice Warren Burger, and also for prominent Supreme Court Justice Antonin Scalia. See more on Mr. Schaerr online at Gene Schaerr Bio.
The Utah GOP is seeking what is formally called “en banc review” of the recent 2-1 split decision, because at its core, as Judge Tymkovich points out, SB 54/CMV “violates the First Amendment.” He also wrote, “The background of this case should caution us as to the perils of allowing states to impose procedural changes of this magnitude on unwilling political parties.”
The history of this challenge is worth reviewing. SB 54 was passed by the Utah Legislature during the 2014 session. The Utah Republican Party immediately filed suit and won the first portion of our constitutional challenge, overturning an onerous stipulation requiring the Party to allow non-Republicans to participate in nominating our candidates. While we have not yet prevailed on the current challenge, which seeks to further protect First Amendment freedoms, Judge Tymkovich’s recent support should be heartening to all Constitution-minded Utah citizens. As Judge Tymkovich wrote last week, Count My Vote is a government mandate that “will generate different candidates…among whom are many persons who only nominally associate with the Party. Count My Vote understood that.” Such governmental interference in a private, voluntary association’s selection of its representatives is a flat violation of the First Amendment, as understood by those who wrote and ratified it.
Thanks to the generosity of Party donors, no new Party resources are being spent on this legal challenge, and all prior legal debts related to this legal fight have been resolved. This enables us to keep the principled fight for every Utah citizen’s First Amendment freedoms alive, so that every Utah neighborhood has a real and meaningful voice in Utah politics.
Finally, it has been noted that the Utah Republican Party is deeply divided by this issue. This should come as no surprise. That was the aim of SB 54 and the small group of well-funded Count My Vote supporters. As Chief Judge Tympkovich noted, “this law is likely to cause divisiveness within the Party’s ranks,” and “[f]ueling intra-party strife endangers an association’s very existence[.]”
We call on all well-meaning citizens, including those who may have supported SB 54 and Count My Vote without understanding their First Amendment infirmities, to join with us. The best way we can move beyond the “divisiveness” and “strife” is to repeal or overturn SB 54 and return Utah politics to our neighborhoods and our founding principles. End of Statement
Gene Schaerr specializes in handling—and usually winning—civil appeals, writ proceedings and similar matters, both in appellate courts and in the law-focused proceedings at the trial-court or agency level that often determine success or failure on appeal. He has argued and won dozens of cases in a variety of forums—including the U.S. Supreme Court (where he has argued six cases), every federal circuit, and numerous federal district courts and state appellate courts. His win rate in the dozens of federal appeals he has argued in the past six years is over 75 percent.
He was a coordinator of Sidley Austin’s appellate practice from 1993 until 2005, and from 2005 until 2014 was the chair of the nationwide appellate practice at Winston & Strawn—a practice he led to numerous recognitions in such publications as the Appellate Hot List. His personal practice successes have won him repeated recognition in such publications as Best Lawyers in Washington, D.C., Legal 500, D.C. Superlawyers, and Best Lawyers in America. In January 2014, Mr. Schaerr formed his own boutique litigation firm so that he could serve his clients without the conflicts and inefficiencies inherent in big-firm law practice.
Substantively, Mr. Schaerr’s experience includes not only virtually every area of federal law, defamation, higher education law, immigration, insurance coverage, labor and employment, patent and trademark, privacy, product liability and warranty, statutory interpretation and tax.He has represented clients in virtually every sector, including automotive, communications, energy, financial services, health care, higher education, insurance, maritime, pharmaceuticals, technology and state and local government. He also teaches courses in Supreme Court litigation, religious freedom litigation and advanced litigation skills as an adjunct professor of law at the Brigham Young University law school.
Mr. Schaerr began law practice in 1987 following clerkships on the U.S. Supreme Court (for Chief Justice Warren Burger and Justice Antonin Scalia) and on the U.S. Court of Appeals for the D.C. Circuit (for then- Judge Kenneth Starr). He graduated in 1985 from the Yale Law School, where he was Editor-in-Chief of the Yale Journal on Regulation and Senior Editor of the Yale Law Journal. From 1991 to 1993, he served in the White House as Associate Counsel to the President, where he had responsibility for a wide range of constitutional and administrative-law issues, including those involving economic regulation, higher education, separation of powers, federalism and religious freedom. He serves as Chairman of the Constitutional Sources Project, a digital resource providing free public access to historical materials relevant to the U.S. Constitution.
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