When a vacancy occurs in the U.S House of Representatives an election of the people must occur. The U.S. Constitution states that the times, places and manner of elections will be prescribed in each state by the legislature thereof (Article 1, Section 4). Further, U.S. Code Title 2, Section 8(a) says, “ … the time for holding elections … to fill a vacancy … may be prescribed by the laws of the several States … ”
It is clearly the role of the Legislature to establish election procedures and “prescribe them by law.” Nowhere is the executive branch given the authority to establish these procedures; the governor’s legal role is to issue a formal writ declaring that an election will take place.
The separation of powers is one of the most fundamental principles of our government, and protects all of us from abuses inherent in concentrations of power.
It is without question the duty of the Legislature to put in place the parameters of an election. It is equally without question the governor’s job to call a special session to allow us to fulfill this responsibility. For the executive branch to fail to do so, and to then purport to establish “The Times, Places and Manner” outside of the legislative process is an inappropriate breach of his constitutionally defined power.
Utah is one of only three states that do not yet have statutory provisions for a U.S. House of Representatives special election to fill a vacancy. We now face a congressional vacancy and have no process established by law to provide a replacement. But we could, in just a few days, if the governor called us into special session.
The timeline matters. These are historic days in Washington. Major issues hang in the balance. Congress is grappling with issues of great consequence—tax reform, health care and public lands, among others. Every day in Congress in which Utahns are not represented disenfranchises the citizens of the Third District. For as long as the vacancy persists, twenty-five percent of Utahns are left without a voice.
The governor has a clear responsibility to call the Legislature into special session. The state constitution, ratified by the legislature and the people, says that only he can do that. We wouldn’t assert a non-constitutional authority to call ourselves into session, just as he should not assert a non-constitutional authority to commandeer the time, place, and manner of an election process. Again, elections are constitutionally and statutorily placed in the hands of the Legislature.
We need to hold an election of the people and it must be done expeditiously. Governor Herbert’s decision to call an election without allowing the Legislature to perform its legal and constitutional duty is disappointing and exposes the vacancy election process to unnecessary legal and political risks.