Op-ed: Utah’s governor, Legislature are both half right

Source: Deseret News

In the battle over the process for replacing U.S. Rep. Jason Chaffetz, the governor and the Legislature are each half right, but their refusal to compromise is wrong for Utah.

On April 19, Rep. Chaffetz announced he would not stand for re-election in the 3rd Congressional District. In the immediate aftermath, members of the Legislature called on the governor to convene a special session to enact rules for a special election, and threatened to sue if the governor refused.

The governor and others argued against a special session out of a desire to control the process and concern the Legislature would act to undermine the compromise embodied in SB54, which allows candidates to qualify for the ballot by collecting signatures, in addition to the traditional caucus-convention system.

Uncertainty surrounding special election procedures exists because Section 20A-1-502 of the Utah Code authorizes the governor to call for an election to fill a vacancy, but provides no guidance regarding specifics for holding such an election. The Legislature claims the U.S. Constitution gives it sole authority to determine the time, place and manner of holding elections, while the governor believes the Legislature has statutorily delegated that power to his office.

The willingness of both sides to test their legal positions in court is ill-considered. The Legislature has had ample opportunity to enact specific election procedures since the last Utah congressional mid-term vacancy in 1930. Legislators can hardly blame the governor for their failure to implement procedures that would have avoided the current maelstrom. Conversely, cutting the Legislature out entirely is not necessary for the governor to retain control of the process. If he were to call a special session and objected to a process enacted by the Legislature, he could exercise his veto. Playing chicken over a lawsuit to test the limits of the governor’s executive power is irresponsible governance, the outcome of which would, at best, create delay and leave voters feeling disenfranchised.

The Alliance for a Better Utah called on the governor to propose an election process and to call a special session to approve that process. Although this plan would not allay all the Legislature’s constitutional concerns, it would demonstrate the governor’s respect for the separation of powers by including lawmakers in the process while allowing him to retain ultimate decision-making authority.

On May 19, the lieutenant governor, without legislative input, published a process and schedule for the special election. Recognizing the risk of delay that would result from litigation, legislators appear ready to accept this process. However, Speaker Greg Hughes and others are now considering a constitutional amendment allowing the Legislature to call itself into special session, a right currently reserved to the governor. By thumbing his nose at its role in the special election process, the governor may have inadvertently incentivized the Legislature to pursue this alternative.

The public should care about how these events are playing out — first and foremost, because process and respect for the institutions of government matter. Second, and of more practical concern, empowering the Legislature to call itself into session at lawmakers’ whims could have the effect of transforming our 45-day annual legislative session into what would amount to a full-time legislature. This action risks significant expansion of government power at a cost that will be borne by Utah’s citizens.

Guiding this process should be the interests of constituents. With that in mind, the Legislature’s desire to participate in the process of determining election procedures is understandable and appropriate. Similarly, the governor’s efforts to protect the public’s involvement in the special election and preserve the multiple paths to the ballot provided by SB54 are rightly based on voters’ interests. For these reasons, the governor and the Legislature are both half right. But if this dust-up ultimately results in a constitutional amendment significantly expanding the time our Legislature sits in session, it will be all wrong for the people of Utah.

Lani Jerman is an attorney. Brian Jones is director of government relations for Sentry Financial Corporation. Both are members of Lawyers for a Better Utah and advisers to the Alliance for a Better Utah.

Read Deseret News article here.

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