Case 2:14-cv-00876-DN Document 13 Filed 01/05/15 Page 1 of 35

Marcus R. Mumford (12737)

MUMFORD PC
405 South Main Street, Suite 975
Salt Lake City, Utah 84111
Telephone: (801) 428-2000
Email: mrm@mumfordpc.com
Attorney for Plaintiff Utah Republican Party
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH, CENTRAL DIVISION
UTAH REPUBLICAN PARTY,

PLAINTIFFS AMENDED MOTION

FOR A PRELIMINARY INJUNCTION1

Plaintiff,
v.

Case No. 2:14-cv-00876-DN

GARY R. HERBERT, et al.

Judge David Nuffer

Defendants.
Pursuant to Rule 65 of the Federal Rules of Civil Procedure, Plaintiff Utah Republican
Party (Party) hereby moves for a preliminary injunction to preserve the status quo and stay the
enforcement and/or implementation of Senate Bill 54 (SB54), attached as Exhibit A, which the
Party is challenging, during the pendency of the underlying action. SB54 is presently scheduled
to go into effect as of January 1, 2015. The parties reached an understanding to avoid the need to
seek a temporary restraining order, as attorneys for the State of Utah have agreed that SB54 does
not require Defendants to take any immediate action affecting the rights of the Party, and the
parties have been negotiating proposals to expedite consideration of the underlying action.
The grounds for the Partys requested relief is that SB54 violates Partys constitutional

This amends Plaintiffs Motion for Preliminary Injunction filed at midnight on New Years
Eve [Dkt 12], with corrected exhibits, more detailed statement of facts, and streamlined
argument.
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rights as well as its rights under the Lanham Act in a manner that threatens to harm the Party
irreparably, that the harm to the Party outweighs any harm to Defendants, and because the
requested relief is in the public interest. This motion is based on the following memorandum of
points and authorities, the attached declarations of James Evans (Evans Decl.)2, with exhibits,
the records and pleadings on file with the Court, all matters of which the Court may take judicial
notice, and such other evidence and oral arguments that may be presented at any hearing on this
Motion. Plaintiff requests oral argument.
INTRODUCTION
The First and Fourteenth Amendments to the United States Constitution guarantee to the
Party and its members the rights to associate in a political party, to act and govern themselves as
a political party, to vote as a party, to define who belongs to the Party, to determine for itself the
Partys platform, to allocate its name, title, emblems, and endorsements to those candidates it
believes will best represent the Partys political platform, to determine for itself the candidate
selection process that will produce the nominee who best represents the Partys political
platform, and to not have the State substitute its judgment for that of the Party or be deprived of
these rights without due process of law. This case concerns these core Constitutional freedoms.
While Utah election law may govern the time, place, and manner of elections, it must
accommodate and respect the Partys rights, especially in how the Party determines for itself
how its nominee standard bearers are selected. The Supreme Court has stated:
In no area is the political associations right to exclude more important than in the
process of selecting its nominee. That process often determines the partys
positions on the most significant public policy issues of the day, and even when
those positions are predetermined it is the nominee who becomes the partys
2

The Declaration of James Evans is attached hereto as Exhibit C.

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ambassador to the general electorate in winning it over to the partys views.

Unsurprisingly, our cases vigorously affirm the special place the First
Amendment reserves for, and the special protection it accords, the process by
which a political party select[s] a standard bearer who best represents the partys
ideologies and preferences. The moment of choosing the partys nominee, we
have said, is the crucial juncture at which the appeal to common principles may
be translated into concerted action, and hence to political power in the
community.
California Democratic Party v. Jones, 530 U.S. 567, 575 (2000) (quoting Tashjian v. Republican
Party of Connecticut, 479 U.S. 208, 216 (1986), and Eu v. San Francisco County Democratic
Central Committee, 489 U.S. 214, 224 (1989)).
Earlier this year, SB54 was enacted to impose on the Party a regimen of election law
rules that substitutes the judgment of the State for the judgment of the Party in how it should
select candidates. Those responsible for SB54 have admitted that its intent was not viewpoint
neutral it was enacted to produce Party nominees for elected office who will represent different
priorities and views than the political views of Party and its members, and to make the
Partys winning candidates less responsive and accountable to the Party and its Platform.
SB54 deprives the Party of the rights it should enjoy as a political party, and did enjoy
prior to SB54. Among other things, SB54 takes away the Partys right to certify its candidates
and control its brand, endorsement and message. It further violates the Supreme Courts
unconstitutional choice or the unconstitutional conditions doctrine by seeking to condition
the Partys right to participate in the political process on its agreement to surrender control of the
internal selection processes of its candidates for office. In the underlying action, the Party seeks
an order striking down SB54 as an unconstitutional infringement on the rights of the Party and its

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members. With this motion, the Party seeks a stay of the enforcement of SB54 to preserve the
status quo and avoid irreparable harm to the Party during the pendency of this action.
STATEMENT OF FACTS
The Party attaches and incorporates herein the attached Declaration of James Evans as
factual support of this motion. Additionally, the Party refers the Court to the Utah legislature
floor debates in consideration of SB54, which are available at http://le.utah.gov/jsp/jdisplay/
billaudio.jsp?sess=2014GS&bill=sb0054&Headers=true, and include the following key points
illustrating how SB54 unconstitutionally burdens the rights of the Party:
1.

Among other things, members of the Utah legislature responsible for the passage of SB54

repeatedly refer to it as a compromise.3 One might ask, a compromise of what? SB54s chief
sponsor, Utah State Senator Curtis Bramble, explained how an outside group known as CMV or
Count My Vote had approached the dominant party, referring to the Utah Republican Party,
with its suggested changes to the partys candidate selection process, and [t]hey said if the party
would make a couple changes in convention or in their central committee then the initiative
wouldnt come forward because their agenda was to increase citizen participation. The
negotiations broke down and they brought the initiative forward. This bill is presented as a
compromise based on those negotiations.4 Senator Jim Dabakis explained the purpose of SB54
in terms of helping wealthy Republican donors get around the current system: this is very
much a majority party situation where theres a group of legacy, kind of not poor majority party
people that just dont like the idea of having to deal with delegates . [T]his is pretty much a
3

See the audio file of floor debate in the Senate, day 24 (Day 24), at approx. 53:03 (statement
of Sen. Bramble, the sponsor of SB54); audio file of floor debate in the House, Day 37 (Day 37
House), at approx. 1:45:46 (Rep. Nelson) (This bill I think is a good compromise.).
4
Day 24, at approx. 53:03 (statement of Sen. Bramble).
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plan to get around delegates as far as Im concerned.5 In other words, SB54 admittedly seeks to
impose on the Party changes to its candidate selection process which it had previously rejected.
This so-called compromise did not involve the Party but was between the State and CMV on
how best to impose those changes on the Party.6
2.

The debates repeatedly state the purpose of SB54 to increase voter participation. But

Senator Bramble explained this in terms of the laws non-viewpoint-neutral purpose of making
the general election more competitive: What impacts citizen participation much greater [than
imposing a direct primary] is competitive races between competing philosophies. [S]tates with
a single party dominance [like Utah] have much lower turnout whether its Republican or
Democrat. So SB54 begins with a premise that there are some affirmative things we can do to
encourage greater participation and provide greater opportunities for citizens to vote.7 Senator
John Valentine explained that the essence is to try to increase a broader participation by voters
and that including the unaffiliated voters to be able to vote in a primary of their choice that is
just critical to me.8 The sponsor of SB54 in the Utah House of Representatives explained: I
dont argue that this policy will better than the caucus convention process. I argue that it can be
more inclusive. I further argue that this process does represent an opportunity for a state that is
5

Audio file of floor debate in the Senate, Day 37 (Day 37 Senate), at approx. 30:59 (statement
of Sen. Dabakis).
6
See, e.g., Day 37 Senate, at approx. 41:18 (statement of Sen. Weiler, explaining his vote in
favor of SB54) (I dont believe Count My Vote was ever about the will of the people. It was
about the will of a the few wealthy people that wanted to have access to the primary ballot
without having to meet with ordinary people who got elected as delegates, and I think that this
compromise, while its better than the original Count My Vote petition, it basically shows that it
was never about the will of the people.).
7
Day 24, at approx. 53:03 (statement of Sen. Bramble); see also id., at approximately 1:01:21
(statement of Sen. Weiler) (referring to the Republican primary which in many areas of our
state is the de facto election).
8
Day 24, at approx. 1:17:28 (statement of Sen. Valentine).
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dominated by a single party to reach out and grab more people, to encourage more people to be
involved in their process.9 In other words, SB54 was intended to substitute the judgment of
the State for that of the Party in how its candidates should be selected, and also to increase voter
participation by (hopefully) reducing the Partys dominance in general elections.
3.

The debates reveal the legislatures intent to force the Party to open up its primaries to

unaffiliated voters.10 Senator Bramble explained how Utah voters are currently unable to
participate in the Partys primary elections unless they registered as a Republican, which was not
difficult and only involved the need to check a box, get the [primary] ballot, and cast a vote,
but to be affiliated with a party, there certain criteria that the party puts on, so that SB54 was
designed to eliminate that check a box requirement and say that because all citizens pay for
the primaries that we shouldnt exclude the largest block of folks [from being able to select the
Partys nominees] simply because they refuse to affiliate with [the] party.11 The Party would
note that is exactly what it is entitled to do: to exclude those who do not affiliate with the Party

Day 37 House, at approx. 2:24:26 (statement of Rep. McCay).

See, e.g., Day 24, at approx. 1:20:25 (statement of Sen. Jones) ([I]ts important that we open
it [referring to the Partys candidate selection process] up to everyone to be able to choose who
their candidates are. Because when we have a one party state whether Utah or other more
democratic states, then you pretty well decide who your representatives are going to be in the
primary, and continuing to explain why it is important that we have more representative
nominees); Day 37 House, at approx. 1:45;46 (Rep. Nelson) ([I]t broadens access to the
[primary] ballot by inviting the participation of unaffiliated voters.); id., at approx. 1:53:42
(statement of Rep. Chavez-Houck) (People should have the opportunity to freely associate with
the party of their choosing, but I would also like us to consider those who in some ways, in some
fashion our current system forces them into forced association to be represented and to articulate
their concerns as to who is representing them on the ballot. I try to speak for those unaffiliated
voters and I believe this compromise legislation provides expanded opportunities for our
unaffiliated voters to feel that they, too, can e a party of this discussion.).
11
Day 24, at approx. 53:03, and Day 37 Senate, at approx. 25:36 (statements of Sen. Bramble).
10

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from being able to select its nominees.12 Representative King stated more plainly: I love the
idea that were going to be able to have an open primary. Of course, the Democratic Party has
had an open primary for many, many years. Its the Republican Party thats got a problem here
in the primaries, lets be honest about this. This is a problem for the GOP in the state of Utah,
and Im not really interested in carrying water for the GOP, but viewed from a bigger
perspective, I think this bill in terms of opening access to the GOP primary for the citizens of the
state of Utah to unaffiliated voters is a good thing.13
4.

The debates acknowledge that SB54 was designed to impose its preferred candidate

selection process on the Party in a way that looks like a voluntar[y] choice.14 Senator Lyle
Hillyard spoke in favor of SB54, explaining that we, as a legislature, cannot mandate to a party
what its election is going to be, which is why its sponsor answer[ed] that problem by simply
say[ing], Were going to have an open primary. And if you as a party dont want to get caught
in this open primary, theres basically four things you have to do, referring to the processes that
would apply to qualified political parties under SB54, [a]nd one of them is that the
unaffiliated voters are given access to the vote in your primary. but, again, the way Senator
Bramble has drafted this Bill is the fact that they have to voluntarily agree to do it as the
condition.15 Legislators felt they were justified in forcing this choice on the Party because of
how the State gives to political parties the privilege of having its name identified on a ballot that
is a public ballot run by the government, which provides the compelling state interests [and]

12

See Jones, 530 U.S. at 575 (In no area is the political associations right to exclude more
important than in the process of selecting its nominee.).
13
Day 37 House, at approx. 1:56:28 (statement of Rep. King).
14
See Day 24, at approx. 1:02:02 (statement of Sen. Hillyard).
15
Id.
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the authorization for this body to regulate that entity.16

5.

Those responsible for SB54 admitted at the time it was passed that it would need changes

before it went into effect, explaining that the purpose was in how it would put the State in charge
of implementing those future changes. The sponsor of SB54 in the House of Representatives
admitted that the bill had problems, including the fact that someone could get to the November
ballot without having won a majority of their partys votes in a primary, but that passing the bill
would displace the Party and put the State in charge of addressing those issues: in my opinion,
that is the key merit of this bill. The decisions are made where the people have elected people to
make their decisions at a representative government.17 The Senate sponsor admitted that the
scenario created by SB54 where a candidate could have far less than a majority vote and still
advance as the partys nominee as something that needs to be fixed in a future session.18

16

Day 37 House, at approx. 1:40:01 (Rep. Powell); Day 37 Senate, at approx. 23:55 (statement
of Sen. Bramble) ([I]f a party chooses to become a qualified political party [among other
things] they would have to allow unaffiliated voters to participate in the primary process). In
contrast, some voted against SB54 because of how this purported choice would caus[e] the
death of the [Partys preferred] caucus and convention system. Day 37 House, at approx.
2:06:41 (statement of Rep. Standard); id., at approx. 2:08:31 (statement of Rep. Greene)
(addressing SB54s false argument: [W]ere confusing [right to the ballot] with the right to a
nomination of the party That is the right that belongs to the people who associate in that party,
and I dont think as a legislature we have the authority to impose upon them what we think might
be the preference of society at large.).
17
Day 37 House, at approx. 2:02:43 (statement of Rep. McCay).
18
Day 37 Senate, at approx. 27:48 (statement of Sen. Bramble).
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ARGUMENT
I. THE APPLICABLE STANDARD TO OBTAIN A PRELIMINARY INJUNCTION.
To obtain a preliminary injunction, the movant must show (1) a likelihood of success on
the merits; (2) a likely threat of irreparable harm to the movant; (3) the harm alleged by the
movant outweighs any harm to the non-moving party; and (4) an injunction is in the public
interest. Hobby Lobby Stores, Inc. v. Sebelius, 723 F.3d 1114, 1128 (10th Cir. 2013). Where
the moving party can show that the second, third, and fourth factors tip strongly in [its] favor,
the Tenth Circuit holds that it may satisfy the first factor by showing that questions going to the
merits are so serious, substantial, difficult, and doubtful as to make the issue ripe for litigation
and deserving of more deliberate investigation. Id. (quoting Okla. ex rel. Okla. Tax Comm'n v.
Int'l Registration Plan, Inc., 455 F.3d 1107, 1113 (10th Cir. 2006)); see also Awad v. Ziriax, 670
F.3d 1111, 1125 (10th Cir. 2012); Prairie Band of Potawatomi Indians v. Pierce, 253 F.3d 1234,
1246-47 (10th Cir. 2001) (If the party seeking the preliminary injunction can establish the last
three factors [of the test for a preliminary injunction], then the first factor becomes less strict
i.e., instead of showing a substantial likelihood of success, the party need only prove that there
are questions going to the merits so serious, substantial, difficult, and doubtful as to make the
issue ripe for litigation and deserving of more deliberate investigation. (quoting Federal Lands
Legal Consortium v. United States, 195 F.3d 1190, 1194 (10th Cir. 1999))).
[I]n First Amendment cases, the likelihood of success on the merits will often be
the determinative factor. ACLU of Illinois v. Alvarez, 679 F.3d 583, 589 (7th Cir.
2012), cert. denied, U.S. , 133 S. Ct. 651 (2012). That is because:

the loss of First Amendment freedoms, for even minimal periods of time,
unquestionably constitutes irreparable injury, Heideman v. South Salt Lake
City, 348 F.3d 1182, 1190 (10th Cir. 2003) (internal quotation marks omitted);

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when [a] law ... is likely unconstitutional, the[ ] interests [of those the
government represents, such as voters] do not outweigh [a plaintiffs interest]
in having [its] constitutional rights protected, Awad, 670 F.3d at 1131-32;
and

it is always in the public interest to prevent the violation of a partys

constitutional rights, id. at 1132.

Hobby Lobby, 723 F.3d at 1145.

The purpose of a preliminary injunction is to preserve the relative positions of
the parties until a trial on the merits can be held. [A] preliminary injunction is
customarily granted on the basis of procedures that are less formal and evidence
that is less complete than in a trial on the merits. A party thus is not required to
prove his case in full at a preliminary-injunction hearing.
Univ. of Texas v. Camenisch, 451 U.S. 390, 395 (1981)
Preliminary injunctions are regularly granted in cases raising constitutional issues. See,
e.g., Republican Party of New Mexico v. King, 741 F.3d 1089 (10th Cir. 2013) (affirming
preliminary injunction of campaign finance law based on First Amendment grounds); Hobby
Lobby, 723 F.3d at 1128 (reversing the denial of a motion for preliminary injunction of
Affordable Care Act regulations mandating contraceptive coverage based on First Amendment
grounds); Campbell v. Bysiewicz, 242 F. Supp. 2d 164 (D. Conn. 2003) (preliminary injunction
and summary judgment granted to candidates challenging ballot-limiting statutes). Likewise,
with respect to the issues raised in the underlying action regarding trademark infringement,
courts have consistently held that a preliminary injunction should usually issue when the use of
a mark creates a likelihood of confusion in the consumers minds as to the ownership or
sponsorship of a product. Church of Scientology Intern. v. Elmira Mission of the Church of
Scientology, 794 F.2d 38, 41 (2d Cir. 1986) (emphasis added); see also Petro Franchise Systems,
LLC v. All American Properties, Inc., 607 F. Supp. 2d 781 (W.D. Tex. 2009) ([P]reliminary

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injunctions are routinely granted to prevent ongoing use of a trademark.).

II. THE COURT SHOULD STAY THE IMPLEMENTATION OF SB54 DURING THE
PENDENCY OF THIS MATTER.
A. Party Will Suffer Irreparable Injury If the Injunction Is Denied.
A plaintiff suffers irreparable injury when the court would be unable to grant an
effective monetary remedy after a full trial because such damages would be inadequate or
difficult to ascertain. Awad, 670 F.3d at 1131 (quoting Dominion Video Satellite, Inc. v.
EchoStar Satellite Corp., 269 F.3d 1149, 1156 (10th Cir. 2001)). Significantly, with respect to
Partys constitutional claims, when an alleged constitutional right is involved, most courts hold
that no further showing of irreparable injury is necessary. Id. (quoting Kikumura v. Hurley, 242
F.3d 950, 963 (10th Cir. 2001)). As Hobby Lobby recognized, the loss of First Amendment
freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury.
Hobby Lobby, 723 F.3d at 1145. In Awad, the plaintiff alleged that enforcement of a state
amendment would violate his constitutional rights. See Awad, 670 F.3d at 1131. Based on such
allegations, the Awad court agreed that Mr. Awad is likely to face irreparable injury absent an
injunction. Id. Likewise, in Hobby Lobby, the court had no difficulty finding that a plaintiff
satisfies the irreparable harm analysis by alleging a violation of RFRA. Hobby Lobby, 723 F.3d
at 1146-47 (explaining that although RFRA violations are not constitutional violations,
Congress has given RFRA similar importance). The result here is no different.
The Supreme Court is unequivocal: our cases vigorously affirm the special place the
First Amendment reserves for, and the special protection it accords, the process by which a
political party selects a standard bearer who best represents the partys ideologies and
preferences. Jones, 530 U.S. at 575 (citations and quotation marks omitted); see also New York

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State Bd. of Elections v. Lopez Torres, 552 U.S. 196, 203 (2008) (recognizing the right that the
First Amendment confers on political parties to structure their internal party processes and to
select the candidate of the partys choosing). There is simply no substitute for a partys
selecting its own candidates. Jones, 530 U.S. at 581. Here, the Party has demonstrated how the
enactment and implementation of SB54 will violate the very constitutional rights recognized by
Jones and other authorities. See Compl. 96-104; Evans Decl. 51-59.19 The recitation of
legislative history helps show that was the intent of the law: to impose the States preferred
candidate selection process on the Party, to force the Party to open its primary, to encourage
broader voter participation by forcing a candidate selection process on the Party that will make
general elections more competitive. Just as in Hobby Lobby and Awad, Party has demonstrated
irreparable harm. Hobby Lobby, 723 F.3d at 1146; Awad, 670 F.3d at 1131.
With respect to Partys trademark infringement claim, many courts have stated that
where the plaintiff makes a strong showing of likely confusion, irreparable injury follows as a
matter of course. Opticians Assn of America v. Independent Opticians of America, 920 F.2d
187, 196 (3d Cir. 1990) (citing opinions from Second, Seventh, Eighth and Ninth Circuits to
reverse denial of preliminary injunction). The Tenth Circuit has subscribed to a similar rule
suggesting that [i]rreparable injury is frequently presumed where a trademark is wrongfully
appropriated by another. SCFC ILC, Inc. v. Visa USA, Inc., 936 F.2d 1096, 1100-01 (10th Cir.
1991) (citing Processed Plastic Co. v. Warner Comms, 675 F.2d 852, 858 (7th Cir. 1982)). The
irreparable injury here is further apparent given the nature of the trademark issue. In Washington
State Grange, Justice Scalia, joined by Justice Kennedy, made the following observations with
19

Thalheimer, 645 F.3d at 1116 (verified complaint may be treated as an affidavit, and, as
such, it is evidence that may support injunctive relief.).
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respect to Party trademarks and symbols:

Parties seek principally to promote the election of candidates who will implement
[their] views. That is achieved in large part by marking candidates with the party's
seal of approval. Parties devote substantial resources to making their names
trusted symbols of certain approaches to governance. They then encourage voters
to cast their votes for the candidates that carry the party name. Parties' efforts to
support candidates by marking them with the party trademark, so to speak, have
been successful enough to make the party name, in the words of one
commentator, the most important resource that the party possesses. And all
evidence suggests party labels are indeed a central consideration for most voters.
Washington State Grange v. Washington State Republican Party, 552 U.S. 442, 463-64 (2008)
(Scalia, J., dissenting) (citations omitted). Not only does SB54 allow the State to misappropriate
from the Party its right to certify one of its most important resource[s], but it further creates
confusion in how the Partys endorsement is presented on the election ballot:
The ballot comes into play at the most crucial state in the electoral process the
instant before the vote is cast. It is the only document that all voters are
guaranteed to see, and it is the last thing the voter sees before he makes his
choice. Thus, we have held that a State cannot elevate a particular issue to
prominence by making it the only issue for which the ballot sets forth the
candidates positions Forced association with the party on the general election
ballot [is] fatal
[T]hrusting an unwelcome, self-proclaimed association upon the party on the
election ballot itself is amply destructive of the partys associational rights. An
individuals endorsement of a party shapes the voters view of what the party
stands for, no less than the partys endorsement of an individual shapes the voters
view of what the individual stands for.
Id. at 465-66 (citations omitted). Here, Party has expended significant resources to makes its
name and mark a trusted symbol. Evans Decl. at 12. SB54 burdens the Partys rights by the
States unwelcome, self-proclaimed association of candidates to the Party. See Evans Decl.
51-52, 55-56, 59. In other words, SB54 hijack[s] the Partys goodwill. Washington State
Grange, 552 U.S. at 466. The Party has thus shown irreparable injury on its trademark claim.

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B. The Injury The Party Will Suffer Outweighs Any Harm To Defendants.
The Party must show that its threatened injury outweighs any injury to [Defendants]
caused by granting the injunction. Awad, 670 F.3d at 1131. With respect to the Partys
constitutional claims, the State will likely argue that the balance weighs in [its] favor because
[Utah] voters have a strong interest in having their politically expressed will enacted, a will
manifested by a large margin at the polls. Id. But, as Awad made clear, when the law that
voters wish to enact is likely unconstitutional, their interests do not outweigh Mr. Awads in
having his constitutional rights protected. Id. Likewise, even if Defendants rely on some
disruption in Utahs election laws, the result is no different.
Furthermore, SB54, like the amendment in Awad, does not appear to address any
immediate problem. Id. at 1132. Indeed, the purpose of SB54 is to decrease the Partys
influence and produce elected officials who are less beholden to the Party. Evans Decl. 43.
Its sponsors admitted that the law needs to be fixed before it is implemented. See supra SOF
5 & nn.15-16. As Awad found, [d]elayed implementation of a measure that does not appear to
address any immediate problem will generally not cause material harm, even if the measure were
eventually found to be constitutional and enforceable. Id. Just as in Hobby Lobby, there is
[no] question about the balance of equities. Hobby Lobby, 723 F.3d at 1146. The Party has an
interest in protecting and preserving its constitutional rights, avoiding unnecessary time and
expense in trying to comply with SB54, and avoiding confusion in the mean time. This interest
outweighs any harm of which Defendants can complain, including delayed implementation of
the politically expressed will of voters. Awad, 670 F.3d at 1131-32; see also Otero Sav. and
Loan Assn v. Federal Reserve Bank of Kansas City, Mo., 665 F.2d 275, 278 (10th Cir. 1981)

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(affirming preliminary injunction where the potential injury to the Reserve Bank from the
granting of an injunction was nonexistent when measured against the resulting harm which
would be suffered by plaintiffs if it were denied).
C. The Injunction Is Not Adverse to the Public Interest.
[I]t is always in the public interest to prevent the violation of a partys constitutional
rights. Hobby Lobby, 723 F.3d at 1147 (quoting Awad, 670 F.3d at 1132). While the public
has an interest in the will of the voters being carried out the public has a more profound and
long-term interest in upholding an individuals constitutional rights. Awad, 670 F.3d at 1132.
In Awad, where the movant sought to enjoin enforcement of a voter approved amendment, the
preliminary injunction was not adverse to the public interest, notwithstanding it would
potentially interfere[] with [Utahns] fundamental right to vote, prevent[] enactment of the
voters will, and discourage[] the voters from participating in the election process. Id. Under no
set of circumstances is Partys requested preliminary injunction adverse to the public interest.
Likewise, regarding the claim for trademark infringement, [public interest] is most often
a synonym for the right of the public not to be deceived or confused. Opticians Assn, 920 F.2d
at 197 (citing 2 J. McCarthy, Trademarks and Unfair Competition, 30:21 (2d ed. 1984)); see
also Tsunami Softgoods, Inc. v. Tsunami International, Inc., 2001 WL 670926, *6 (D. Utah Jan.
19, 2001) (citing Opticians Assn). Allowing Defendants to substitute the States preferred
process for that of the Party and misappropriate the Partys mark and emblem surely undermines
the public interest. Imposing on the Party a candidate who may not be a member, who has not
stated his or her position regarding Partys platform, and who may not have been selected by a
majority of Republicans creates confusion. See Compl. 70. Just as in Tsunami, the public

Case 2:14-cv-00876-DN Document 13 Filed 01/05/15 Page 16 of 35

interest is best served by entry of an injunction. Tsunami, 2001 WL 670926, at *6.

D. The Party Can Demonstrate A Likelihood Of Success On The Merits Or That
There Are Serious Questions Going To The Merits Warranting Litigation.
The second, third, and fourth factors weigh in the Partys favor as it concerns the
constitutional and trademark issues. Accordingly, the Party is not required to demonstrate a
substantial likelihood of success on the merits. Rather, it [need] only to prove that there [are]
questions going to the merits so serious, substantial, difficult, and doubtful as to make the
issue ripe for litigation and deserving of more deliberative investigation. Prairie Band, 253
F.3d at 1253. As in Hobby Lobby, the Party can meet either test for its constitutional and
trademark claims. 723 F.3d at 1128.
1. The Partys Constitutional Claims.
To assess the constitutionality of a state election law, we first examine whether it
burdens rights protected by the First and Fourteenth Amendments. Eu, 489 U.S. at 222. If the
challenged law burdens the rights of political parties and their members, it can survive
constitutional scrutiny only if the State shows that it advances a compelling state interest, and is
narrowly tailored to serve that interest. Id. (citations omitted). Here, the Party has
demonstrated how its First Amendment rights will be infringed by SB54. See, e.g., Evans Decl.
51-59. When the analysis shifts, Defendants cannot meet their special First Amendment
burden to justify SB54s constitutional infringements. Gordon, 721 F.3d at 644.
The Supreme Court has stated that [a] political party has a First Amendment Right to
limit its membership as it wishes, and to choose a candidate-selection process that will in its
view produce the nominee who best represents its political platform. Lopez Torres, 552 U.S. at
202. [Supreme Court] cases vigorously affirm the special place the First Amendment reserves

Case 2:14-cv-00876-DN Document 13 Filed 01/05/15 Page 17 of 35

for, and the special protection it accords, the process by which a political party selects a
standard bearer who best represents the partys ideologies and preferences. Jones, 530 U.S. at
575. Stated simply, a State cannot substitute its judgment for that of the party as to the
desirability of a particular internal party structure. Eu,, 489 U.S. at 232-33. A partys First and
Fourteenth Amendment rights are burdened and suffocate[d] when the law [d]epriv[es] a
political party of the power to endorse candidates, to identify the people who constitute the
association, or to select a standard bearer who best represents the partys ideologies and
preferences. Id. at 224. In no area is the political associations right to exclude more
important than in the process of selecting its nominee. Jones, 530 U.S. at 575. And [t]he
freedom to associate for the common advancement of political beliefs, necessarily presupposes
the freedom to identify the people who constitute the association, and to limit the association to
those people only. Democratic Party of U.S. v. Wisconsin ex rel. La Follette, 450 U.S. 107, 122
(1981). In other words, a corollary of the right to associate is the right not to associate. Jones,
530 U.S. at 574. Laws that seek to substitute [the States] own judgment for that of the Party,
Tashjian v. Republican Party of Conn., 479 U.S. 208, 216 (1986) (quoting La Follette, 450 U.S.
at 122-23), and either regulate a political partys internal decisionmaking process
compel[ling] it to associate with voters of any political persuasion, or regulate its internal
processes, its authority to exclude unwanted members, or its capacity to communicate with the
public should be struck down. Clingman v. Beaver, 544 U.S. 581, 590 (2005). In Clingman,
the Supreme Court distinguished several Supreme Court cases and upheld Oklahomas statute
restricting a partys primary to its registered members or, if the party wished, to independents.
Id. Voters challenged the law because they wish[ed] to remain registered with the Republican,

Case 2:14-cv-00876-DN Document 13 Filed 01/05/15 Page 18 of 35

Democratic, or Reform parties, and yet assist in selecting the Libertarian Partys candidates
for the general election. Id. at 588. The Supreme Court applied its decision in Timmons v. Twin
Cities Area New Party, 520 U.S. 351, 353-54 (1997), which upheld a Minnesota law prohibiting
a minor party from adopting and putting forward as its own the same candidate as a major party,
on grounds that the prohibition did not regulate[] [the partys] internal decisionmaking process,
nor compel[] it to associate with voters of any political persuasion. Clingman, 544 U.S. at 58990. The Oklahoma law similarly did not regulate the [partys] internal processes, its authority
to exclude unwanted members, or its capacity to communicate with the public. Id. In contrast,
the Clingman court distinguished Tashjian on grounds that the Connecticut law it struck down in
that case sought to impose on the party a restriction on whether independent voters could vote in
primaries that contradicted the partys internal rules allowing it. Id. at 592. The Oklahoma law
did not attempt to compel a party to either allow or disallow the participation of independent
voters, but rather left those issues to the respective parties. See id.
SB54 burdens and threatens to burden all of the aforementioned rights of a political
party. See, e.g., Evans Decl. 51-59. Several cases illustrate this point. In La Follette, the
Supreme Court struck down as unconstitutional a law that, like SB54, burdened a political
partys right to exclude. The Court stated:
Here, the members of the National Party, speaking through their rules, chose to
define their associational rights by limiting those who could participate in the
processes leading to the selection of delegates to their National Convention. On
several occasions this Court has recognized that the inclusion of persons
unaffiliated with a political party may seriously distort its collective decisions
thus impairing the partys essential functions and that political parties may
protect themselves from intrusion by those with adverse political principles.
La Follette, 450 U.S. at 122. Like the National Party in La Follette, the Party here has through

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its defined who can and cannot participate in its candidate selection process. Evans Decl. 20,
25, 29. The Party has chosen to exclude unaffiliated voters or voters registered with other parties
from its processes. Evans Decl. 25. SB54 was intentionally designed to force the Party to
change that and force the Party to open any primary to unaffiliated voters. Supra SOF 2-3;
Evans Decl. 57(b). In La Follette, the Court recognized the importance of inhibit[ing] party
raiding, whereby voters in sympathy with one party designate themselves as voters of another
party so as to influence or determine the results of the other partys primary. La Follette, 450
U.S. at 122. But party raiding is exactly what SB54 not only permits but intends.
In Jones, 530 U.S. at 577, the law at issue force[d] political parties to associate with-to
have their nominees, and hence their positions, determined by-those who, at best, have refused to
affiliate with the party, and, at worst, have expressly affiliated with a rival. As the Court noted,
this was like the unconstitutional law in La Follette that allow[ed] nonparty members to
participate in the selection of the partys nominee [in] conflict[] with the Democratic Partys
rules. Id. at 576. Significantly, the Court observed: It is arguable that, under the Courts
reasoning combined with Tashjian, the only nominating options open for the States to choose
without party consent are: (1) not to have primary elections, or (2) to have what the Court calls a
nonpartisan primary. Jones, 530 U.S. at 577 n.8. SB54 does not fall into either category.
As Jones explained, a nonpartisan primary is not actually a primary in the common,
partisan sense of that term at all. Rather, it is a general election with a runoff. Id. SB54 is not
the type of nonpartisan primary described by Jones. This point is illustrated by the Supreme
Courts consideration of a nonpartisan primary system adopted in Washington, directly in
response to Jones. See Washington State Grange v. Washington State Republican Party, 552

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Case 2:14-cv-00876-DN Document 13 Filed 01/05/15 Page 20 of 35

U.S. 442, 446-47 (2008) (After our decision in Jones, the Court of Appeals for the Ninth Circuit
struck down Washingtons primary The Washington State Grange promptly proposed I-872 as
a replacement.).
In Grange, the political party claimed that, like the law in Jones, the new Washington law
allows primary voters who are unaffiliated with a party to choose the partys nominee.
Grange, 552 U.S. at 452. But, as the Court explained, [t]he flaw in this argument is that, unlike
the California primary, the I-872 primary does not, by its terms, choose the parties nominees.
Id. at 453. [T]he election regulations specifically provide that the primary does not serve to
determine the nominees of a political party but serves to winnow the number of candidates to a
final list of two for the general election. Id. Finally, [w]hether the parties nominate their own
candidates outside the state-run primary is simply irrelevant. Id. Unlike the Grange law, under
SB54 the State does choose the partys nominee, and in fact strips the Party of that right. Evans
Decl. 51(b). In contrast to Grange, it is not irrelevant if parties nominate their own candidates
outside the state-run primary. Id. Indeed, if the party nominates a candidate outside the system
mandated by SB54, the party loses its right to endorse candidates on the general election ballot.
Evans Decl. 52(b). As Justice Scalia made clear: Parties efforts to support candidates by
marking them with the party trademark, so to speak, have been successful enough to make the
party name, in the words of one commentator, the most important resource that the party
possesses. Grange, 552 U.S. at 464 (Scalia, J., dissenting). Like the blanket primary in Jones,
SB54 forces petitioners to adulterate their candidate-selection process a political partys basic
function by opening it up to persons wholly unaffiliated with the party, who may have different
views from the party. Jones, 530 U.S. at 568; see supra SOF 2-4. And like the law in Jones,

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SB54 has the likely outcomeindeed, it is [SB54s] intended outcomeof changing the
parties message. Id.; see supra SOF 1-5; Evans Decl. 43. SB54 is not the type of
nominating option[] open for the State to choose without party consent. Id. at 577 n.8.
Accordingly, SB54 is unconstitutional unless it is narrowly tailored to serve a compelling state
interest. Id. at 568. Following Jones, several courts have struck down laws similar to SB54.
In Idaho Republican Party v. Ysura, 765 F. Supp. 2d 1266, 1268 (D. Idaho 2011), the
court found that [b]ecause the open primary permits substantial numbers of independent voters,
as well as voters associated with other political parties, to cross over and participate in the
Republican Partys selection of its nominees, the Court concludes that, by mandating such a
nomination process, the State violates the Partys constitutionally guaranteed right to freedom of
association. In Idaho Republican Party, the court relied on the states own expert testimony,
which established the following:
Inside the Idaho open primary system, especially in a one-party state like Idaho
where the Republican Party primaries are in most cases the only game in town,
voters do likely cross over; they have to in order to have any meaningful influence
in the elections and express their sincere preferences with regard to their own
representation
Id. at 1273. Expert testimony further established that extant empirical literature on crossover
voting shows that an effective estimate of the average of crossover voting in the literature comes
in at around 10%, under the strict definition of crossover votingof one sides partisan
identifiers voting in another party. Id. at 1274. The experts also testified that if they included
independent voters, there is more likely 20-30% crossover voting. Id. According to Idaho
Republican Party, even if we use the most conservative estimate of 10% crossover voting, with
only a small number of partisan raiders, the effects can be devastating to a party. Id. at 1275.

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Thus, the court could not find any meaningful distinction between the open primary in Idaho
and the blanket primary found unconstitutional in Jones. Like the blanket primary system
addressed in Jones, the current open primary system in Idaho forces the Idaho Republican Party
to open its candidate-selection process to persons wholly unaffiliated with the Party. Id. This
case is no different. Like Idaho, Utah is a one-party state where the Republican Party
primaries [will] in most cases [be] the only game in town. Id. at 1273; see Evans Decl. 13.
Further, SB54 does not include any disaffiliation requirements and it mandates that unaffiliated
voters can cast votes in Partys primary elections. Evans Decl. 57(b). Just as in Idaho
Republican Party, crossover voting is likely, and whether the percentage of crossover voting is
10%, or even smaller, just as in Idaho Republican Party or Jones, such forced association has
the likely outcome of changing [Partys] message. Id. at 1275 (quoting Jones, 530 U.S. at
581-82). Indeed, that is the stated purpose of County My Vote and SB54. Evans Decl. 42-43.
With respect to Partys right to exclude, just as in Idaho Republican Party, there is no
meaningful distinction between the open primary [under SB54] and blanket primary found
unconstitutional in Jones. Id.
In Arizona Libertarian Party v. Brewer, Case No. 4:02-cv-00144-RCC (D. Ariz. Sept. 27,
2000), the district court noted that [a] political partys right to choose its own nominees is a core
associational activity and the mandatory inclusion of unaffiliated persons with the political party
may seriously distort the partys decision. (Order at 7, attached as Exhibit B.) As the court
explained, Arizonas primary system compels the ALP to associate with registered
independents and those registered with other parties who do not have a candidate in the general
election. (Order at 5-6.) Because this create[d] the danger that the Libertarian candidate will

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Case 2:14-cv-00876-DN Document 13 Filed 01/05/15 Page 23 of 35

be selected by voters who are not Libertarians, the district court found that [t]he burden
imposed on the ALP by Arizonas primary system is severe. (Id. at 5.) Stated differently,
[d]ue to the potential distortion forced on the Libertarian party by the mandatory inclusion of
those not affiliated with the party, Arizonas primary system imposes a severe burden on the
ALP. (Id. at 7.) The district court also rejected attempts to distinguish Arizonas law from the
one in Jones, or to analogize Arizonas primary system to those at issue in Clingman v. Beaver,
544 U.S. 581 (2005). As the court explained, [t]he burden imposed in this case is more similar
to the burden imposed in Jones than the burden imposed in Clingman. (Order at 6-7.) This is
because, like Jones, and unlike Clingman, the burden involved forced association in the primary
election. (Id.) In other words, [a]s in Jones, Arizonas primary system has created a clear and
present danger of a partys candidate being chosen by people other than party members. SB54
permits unaffiliated voters to vote in Partys primary elections. This is the same burden found in
Arizona Libertarian Party and Jones, not Clingman. Indeed, the Clingman Court specifically
distinguished Oklahomas semiclosed primary system as unlike the law in Jones which
would compelassociation with unwanted members or voters. Clingman, 544 U.S. at 587.
In addition to the Jones case, Arizona Libertarian Party also explained how Arizonas
primary system is similar to the Virginia primary system found unconstitutional in Miller v.
Brown, 465 F. Supp. 2d 584 (E.D. Va. 2006). (Order at 7-8.) As the Sixth Circuit stated, the
Board concedes that if a political party is compelled to select its candidate by means of a
state-run primary, the State may not force the party to include voters in that primary.
Miller v. Brown, 503 F.3d 360, 368 (4th Cir. 2007) (emphasis added). But, like SB54, the
Virginia law did just that, it forced the Committee to use a nomination process that prevented it

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Case 2:14-cv-00876-DN Document 13 Filed 01/05/15 Page 24 of 35

from excluding voters with whom it did not wish to associate. Id. at 363. Thus, relying on
language from our prior opinion in this case, the court determined that the type of forced
association caused by mandatory open primary causes significant injury to the First Amendment
rights of a political party. Id.
The only reason Virginias law was not unconstitutional on its face was because
Virginia law permitted other methods of nomination under which a political party could restrict
participation in its nominating process to voters who share its political beliefs. Id. But that is
not the case with SB54. While Defendants may argue that Party can disregard SB54 and still
place a nominee on the general election ballot, the Court should not be persuaded. As explained
above, any disregard for the SB54 system comes at great cost to Party. See Evans Decl. 52(b).
SB54 would severely penalize Party by either forcing it to accept a process that would not
guarantee a candidate who is a party member or elected by a majority of the party or by
prohibiting it from putting its mark or endorsement on the ballot. Id. But being able to support
candidates by marking them with the party trademark[is] the most important resource that the
party possesses. Grange, 552 U.S. at 464 (Scalia, J., dissenting); see also Eu, 489 U.S. at 224
([b]arring political parties from endorsing and opposing candidates not only burdens their
freedom of speech but also infringes upon their freedom of association and [d]epriving a
political party of the power to endorse suffocates this right.) Indeed, all evidence suggests
party labels are...a central consideration for most voters. Id. Contrary to what Defendants
might claim, SB54 does not allow other methods of nomination, SB54 impermissibly places
Party between a rock and a hard place. On the one hand, Party must allow the State to
substitute its judgment for that of the party, something the State cannot do. See Eu, 489 U.S.

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Case 2:14-cv-00876-DN Document 13 Filed 01/05/15 Page 25 of 35

at 233. On the other hand, Party must forfeit its right to have its mark and endorsement, its
most important resource, on the general election ballot. See Grange, 552 U.S. at 464 (Scalia,
J., dissenting); Evans Decl. 52(b). But even if SB54 provides other nominating options,
Arizona Libertarian Party dictates that the burden imposed by SB54 is still severe, just as it was
in Miller even though the primary system in Virginia was not exclusive. Arizona Libertarian
Party, Order at 7-8.
Finally, in Green Party of Tennessee v. Hargett, 882 F. Supp. 2d 959 (M.D. Tenn. 2012)
rev'd on other grounds and remanded, 700 F.3d 816 (6th Cir. 2012), the court invalidated
Tennessees requirement that partys choose nominees by way of primary elections. There, the
state argued that Tennessees system was akin to the semi-closed primary that renders
Tennessees system distinguishable from Jones and more like the Supreme Courts decisions in
Clingman, and Tashjian. Id. at 1004. But, unlike the Tennessee statute at issue, as well as
SB54, the Clingman and Tashjian cases involved primaries where voters also had to act by
registering themselves in a particular party and where voters had to register as Libertarians or
Independents to participate in LPOs primary. Id. In other words, like the Tennessee law, SB54
does not assure that the nonparty members are registered independents as in Clingman, and
Tashjian. Id. More significantly, Clingman and Tashjian involved acts by political
parties requesting the State to open their closed primaries to allow independent voters to
participate in their primaries. Id. In other words, unlike in Clingman and Tashjian, and just
like in Green Party, here the State is initiating this action by state law imposing these
requirements upon [Party]. Id. This is important. The Jones Court recognized that under
Tashjian, a party may require a State to open up a closed primary. Jones, 530 U.S. at 577 n.8.

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But, the Court stated that, arguably, there are only two potential nominating options open for
the States to choose without party consent. Id. As previously explained, SB54 does not fall
into either of these permissible nominating options. The Green Party court ultimately held
that [b]ased upon Timmons and the holding in Jones, Tennessee cannot force Plaintiffs to
select their nominees by primary election and to compel Plaintiffs to do so violates Plaintiffs
First Amendment right of association, including the right to select the nominees or
spokespersons for their parties. Green Party, 882 F. Supp. 2d at 1005. Just as in Green Party,
and as counseled by the Supreme Court in Jones, the State cannot impose the nominating
option contemplated by SB54 without Partys consent. Jones, 530 U.S. at 577 n.8. To do so
imposes a severe burden on the Partys rights.
To summarize, SB54 is substantially similar to the election laws that were invalidated by
La Follette, Jones, Idaho Republican Party, Arizona Libertarian Party, Miller, and Green Party.
Like SB54, the laws in all of those cases impermissibly forced political parties to adulterate
their candidate-selection process the basic function of a political party, by opening it up to
persons wholly unaffiliated with the party. Jones, 530 U.S. at 581. Like SB54, the burden
imposed by the laws in all of those cases is both severe and unnecessary. Id. at 586. And like
the laws in all of those cases, SB54 is unconstitutional unless it is narrowly tailored to serve a
compelling state interest. Id. at 582.
In this, the State may respond to say that it has the authority to regulate elections and
SB54 gives the Party a choice in that respect. See SOF 4-5. But the State cannot condition
the Partys right to participate in the political process on its agreement to surrender control of the
internal selection processes of its candidates for office. This is known as the unconstitutional

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choice or unconstitutional conditions doctrine. As the Supreme Court declared in Perry v.

Sindermann, 408 U.S. 593 (1972):
For at least a quarter-century, this Court has made clear that, even though a person
has no right to a valuable governmental benefit, and even though the
government may deny him the benefit for any number of reasons, there are some
reasons upon which the government may not rely. It may not deny a benefit to a
person on a basis that infringes his constitutionally protected interest, especially
his interest in freedom of speech. For if the government could deny a benefit to a
person because of his constitutionally protected speech or associations, his
exercise of those freedoms would in effect be penalized and inhibited. This would
allow the government to produce a result which [it] could not command
directly. Speiser v. Randall, 357 U.S. 513, 526. Such interference with
constitutional rights is impermissible.
More recently, the Supreme Court noted in Board of County Commrs v Umbehr, 518
U.S. 668, 674 (1996):
Recognizing that constitutional violations may arise from the deterrent, or
chilling, effect of governmental [efforts] that fall short of a direct prohibition
against the exercise of First Amendment rights, Laird v. Tatum, 408 U.S 1, 11
(1972), our modern unconstitutional conditions doctrine holds that the
government may not deny a benefit to a person on a basis that infringes his
constitutionally protected freedom of speech even if he has no entitlement to
that benefit, Perry v. Sindermann, 408 U.S 593, 597 (1972).
Id. The Tenth Circuit has consistently applied this unconstitutional conditions doctrine to
prospectively enjoin statutes or regulations that condition the receipt of a government benefit
upon the surrender of rights of free speech or association. See, e.g., Planned Parenthood of
Kansas and Mid-Missouri v. Moser, 747 F.3d 814, 838-839, (10th Cir. 2014); Utah Licensed
Beverage Association v. Leavitt, 256 F.3d 1061, 1074, 1076 (10th Cir. 2001) (To permit Utah to
abridge the commercial speech rights of its liquor licensees as a condition of their licenses would
constitute just such a qualification of the First Amendment.). Thus the State cannot avoid the
impact of SB54 on the Partys rights by arguing that it somehow gives the Party a choice in

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how it complies with the restrictions and burdens SB54 places on the Partys rights.
Defendants have not yet fully articulated a narrowly tailored, compelling state interest,
nor is is likely that they can meet that burden. See Gordon, 721 F.3d at 644 (in First Amendment
context, state has special First Amendment burden). Indeed, Jones rejected seven state
interests and also observe[d] that even if all these state interests were compelling ones,
Proposition 198 is not a narrowly tailored means of furthering them. Jones, 530 U.S. at 582,
585. As an example of a narrowly tailored means, the Court proffered the nonpartisan
primary, which SB54 is not. See id. at 585-86 (explaining nonpartisan blanket primary in
which, unlike the law in Jones, or SB54 here, [p]rimary voters are not choosing a partys
nominee). Any attempt by Defendants to offer a compelling state interest is further likely to fail
because, as the Supreme Court held in La Follette, whatever the strength of the state interests
supporting the open primary itself, they could not justify this substantial intrusion into the
associational freedoms of members of the National Party. Id. at 576 (quoting La Follette, 450
U.S. at 126). In light of the foregoing, the Party has met its burden to obtain a preliminary
injunction staying enforcement of SB54 during the pendency of this matter.
2. The Partys Trademark Infringement Claim.
Under 15 U.S.C. 1125(a), Party must make the following showings: (1) that the mark
is protectable; (2) that Defendants used the trademark in connection with any goods or
services; and (3) that Defendants use is likely to cause confusion, or to cause mistake, or to
deceive as to the affiliation, connection, or association of such person with another person, or as
to the origin, sponsorship, or approval of his or her goods, services, or commercial activities by
another person. Utah Lighthouse Ministry v. Foundation of Apologetic Information and

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Research, 527 F.3d 1045, 1050 (10th Cir. 2009). These elements are satisfied here.
a. Partys Mark Is Protectable.
An identifying mark is distinctive and capable of being protected if it either (1) is
inherently distinctive or (2) has acquired distinctiveness through secondary meaning. Two
Pesos, Inc. v. Taco Cabana, Inc., 505 U.S. 763, 769 (1992). Marks are often classified in
categories of generally increasing distinctivenessthey may be (1) generic; (2) descriptive; (3)
suggestive; (4) arbitrary; or (5) fanciful. Id. at 768. The latter three categories of marks,
because of their intrinsic nature serves to identify a particular source of a product, are deemed
inherently distinctive and are entitled to protection. Id. In contrast, generic marksthose that
refer to the genus of which the particular product is a species,are not registerable as
trademarks. Id. Here, the Partys mark fits into the latter three categories and is protectable.
Justice Scalias dissent in the Washington State Grange case is instructive. As Justice
Scalia explained, [p]arties seek principally to promote the election of candidates who will
implement [their] views. Washington State Grange, 552 U.S. at 463 (citations omitted). That
is achieved in large part by marking candidates with the party's seal of approval and [p]arties
devote substantial resources to making their names trusted symbols of certain approaches to
governance. Id. at 464 (citations omitted). Further, [p]arties' efforts to support candidates by
marking them with the party trademark, so to speak, have been successful enough to make the
party name, in the words of one commentator, the most important resource that the party
possesses. Id. (citations omitted). Further, all evidence suggests party labels are indeed a
central consideration for most voters. Id. (citations omitted). Surely Partys Mark, or the mark
of any political party, is inherently distinctive andentitled to protection. Two Pesos, 505

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U.S. at 768. This is especially true where Party has expended significant resources to make its
name and mark a trusted symbol. Evans Decl. 12.
Also instructive is the Second Circuits decision in United We Stand America Inc. v.
United We Stand, America New York, Inc., 128 F.3d 86 (2d Cir. 1997). There, the plaintiff
brought suit to enjoin the use of its registered service mark which was a service mark initially
used by the principal campaign committee for Ross Perots 1992 presidential campaign. United
We Stand, 128 F.3d at 88. Summary judgment was granted in favor of the plaintiff and the
Second Circuit affirmed. Like Justice Scalia, the Second Circuit explained the importance of a
political organizations mark:
A political organization that adopts a platform and endorses candidates under a
trade name performs the valuable service of communicating to voters that it has
determined that the election of those candidates would be beneficial to the
objectives of the organization. Thus voters who support those objectives can
support the endorsed candidates with some confidence that doing so will advance
the voters' objectives. If different organizations were permitted to employ the
same trade name in endorsing candidates, voters would be unable to derive any
significance from an endorsement, as they would not know whether the
endorsement came from the organization whose objectives they shared or from
another organization using the same nameThe resulting confusion would be
catastrophic; voters would have no way of understanding the significance of an
endorsement or position taken by parties of recognized major names. The
suggestion that the performance of such functions is not within the scope of
services in commerce seem to us to be not only wrong but extraordinarily
impractical for the functioning of our political system.
Id. at 90. In light of the foregoing, there can be no doubt that Partys mark is protectable. See,
e.g., Partido Revolucionario Dominicano (PRD) Seccional Metropolitana de Washington-DC,
Maryland y Virginia v. Partido Revolucionario Dominicano, Seccional de Maryland y Virginia,
312 F. Supp. 2d 1, 11 (D.D.C. 2004) ([Lanham Act] protections extend to the names and
symbols related to political organizations.) (citing United We Stand, 128 F.3d at 90).

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b. Under SB54, Partys Mark Will Be Used In Connection With Goods Or Services.
Again, United We Stand is instructive. As the Second Circuit explained, [t]he term
services has been interpreted broadly. United We Stand, 128 F.3d at 89. [T]he right to
enjoin infringement of a trade or service mark is as available to public service organizations as
to merchants and manufacturers. Id. (citation omitted). And retention of a distinct identity by
a non-profit organization that sells no goods is just as important as it is to a commercial
company. Id. (internal quotations and citation omitted). Accordingly, [t]he Lanham Act has
thus been applied to defendants furnishing a wide variety of non-commercial public and civic
benefits. Id. at 90. Under SB54, the State provides a non-commercial public and civic
benefit[] by overseeing general elections. Indeed, as the Supreme Court explained in Jones,
States have a major role to play in structuring and monitoring the election process. Jones, 530
U.S. at 572. Here, among other things, the State is charged with regulating paper ballots. See
Utah Code Ann. 20A-6-301, et seq as amended. Thus, the State is engaged in dissemination of
information which has been categorized as a service under the Lanham Act. See United We
Stand, 128 F.3d at 90 (citing Committee for Idahos High Desert v. Yost, 881 F. Supp. 1457,
1470-71 (D. Idaho 1995)). The concurring and dissenting opinions in Washington State Grange
recognized the importance of this service. Citing to Justice Scalias dissent, Chief Justice
Roberts recognized that what makes the ballot special is precisely the effect it has on voter
impressions. Washington State Grange, 552 U.S. at 460 (Roberts, C.J. concurring). Namely
that [the ballot] is the only document that all voters are guaranteed to see, and it is the last thing
the voter sees before he makes his choice. Id. at 465 (Scalia, J. dissenting) (citations omitted).
Here, SB54 allows the State to use Partys mark in connection with goods or services.

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Without Partys authorization, the statute gives the State the right to allocate the Partys mark as
set forth in the law. Evans Decl. 52, 55. To the extent the State argues that this element is not
met because the State does not offer competing services, the Court should not be persuaded.
See Washington State Republican Party v. Washington State Grange, 676 F.3d 784, 795 (9th Cir.
2012) (affirming dismissal of trademark claim where Libertarian Party did not even attempt[]
to show that state uses party labels on ballot to perform a service in competition with the
Libertarian Party). It is well established that liability for trademark infringement can extend
beyond those who actually mislabeled goods with the mark of another. Inwood Laboratories,
Inc. v. Ives Laboratories, Inc., 456 U.S. 844, 853 (1982). In other words, liability is not limited
to the one who offers the competing services. As the Inwood Court explained, if a manufacturer
or distributor intentionally induces another to infringe a trademark, or if it continues to supply its
product to one whom it knows or has reason to know is engaging in trademark infringement, the
manufacturer or distributor is contributorially responsible for any harm done as a result of the
deceit. Id. at 854. Here SB54 would allow the State to use Partys mark and associate it with
candidates whom the State knows or has reason to know are not actually endorsed by Party
and whom the Party did not select as its nominee. Evans Decl. 52, 55. SB54 would allow the
State to associate Partys mark with candidates who do not adhere to Partys platform, are not
accountable to Party, and are otherwise in direct competition with Party and potentially Partys
actual preferred nominee. Id. 52, 55-56, 59. Under SB54, the State would certainly be liable
pursuant to the doctrine of contributory infringement.
c. The States Use Of Partys Mark Is Likely To Cause Confusion.
The States use of Partys mark under SB54 is likely to cause confusion. SB54 permits

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the State to associate Partys mark with candidates who do not adhere to Partys platform and
who are not the standard bearer for Partys message. To quote from United We Stand:
A political organization that adopts a platform and endorses candidates under a
trade name performs the valuable service of communicating to voters that it has
determined that the election of those candidates would be beneficial to the
objectives of the organization. Thus voters who support those objectives can
support the endorsed candidates with some confidence that doing so will advance
the voters' objectives. If different organizations were permitted to employ the
same trade name in endorsing candidates, voters would be unable to derive any
significance from an endorsement, as they would not know whether the
endorsement came from the organization whose objectives they shared or from
another organization using the same nameThe resulting confusion would be
catastrophic; voters would have no way of understanding the significance of an
endorsement or position taken by parties of recognized major names.
United We Stand, 128 F.3d at 90-91. If candidates who do not adhere to Partys platform and
who are not endorsed by Party are allowed to have Partys mark placed next to their name on the
ballot, as SB54 allows, surely there will be catastrophic confusion. Indeed, as Justice Scalia
explained, party labels are indeed a central consideration for most voters and a political partys
goal of promot[ing] the election of candidates who will implement [its] viewsis achieved in
large part by marking candidates with the partys seal of approval. Washington State Grange,
552 U.S. at 463-64 (Scalia, J. dissenting). This element is satisfied in Partys favor, and the
Party has met its burden to obtain a preliminary injunction.
CONCLUSION
For the foregoing reasons, the Court should grant a preliminary injunction staying the
enforcement or implementation of SB54 during the pendency of this matter.
STATEMENT REGARDING TEMPORARY RESTRAINING ORDER
After Plaintiff filed its complaint in this matter, the parties reached out to discuss
procedures they could use to expedite consideration of this matter. Those discussions are
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ongoing, but in the context of those discussions, and in particular as concerning Plaintiffs thenstated intention to apply for a temporary restraining order to stay the enforcement or
implementation of SB54 during the pendency of a motion for preliminary injunction, the State
stated its understanding that SB54 does not require Defendants to take any immediate action
affecting the rights of the Party, and agreed not to use the lack of any temporary restraining order
against Plaintiff in responding to this motion. Based on that, Plaintiff moves for preliminary
injunction without a corresponding application for a temporary restraining order.
Dated: January 5, 2014.
/s/ Marcus R. Mumford
Marcus R. Mumford
Attorney for Plaintiff

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CERTIFICATE OF SERVICE
I hereby certify that on January 5, 2015, I electronically filed the foregoing
PLAINTIFFS AMENDED MOTION FOR A PRELIMINARY INJUNCTION with the
Clerk of Court using the CM/ECF system which sent notification of such filing to the following:
David N. Wolf
dnwolf@utah.gov
Parker Douglas
pdouglas@utah.gov
Gregory M. Simonsen
greg@mountainwestlaw.com

/s/ Joshua S. Ostler

Joshua S. Ostler

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