An agreement has been reached between GOP Gov. Gary Herbert, Attorney General Sean Reyes, and GOP legislative leaders: The Legislature will get Reyes’ legal opinion on the 3rd Congressional District election process, and lawmakers will make it public.
That will come when Tuesday’s special election results are “certified” – which officially ends the process this year of replacing former U.S. Rep. Jason Chaffetz.
Provo Mayor John Curtis, as expected, won Tuesday.
But House Speaker Greg Hughes, R-Draper, told UtahPolicy Wednesday afternoon that the disputed opinion won’t come to the Legislature, nor can leaders make it public, until the election is finally over.
That likely will be the official canvas conducted by the Utah Elections Office and respective county clerks and governing local political bodies.
The county canvass must be done by Nov. 22; the state board of canvassers must act by Nov. 28.
Hughes emphasized that no matter what the opinion says, lawmakers will “absolutely” act in the 2018 Legislature and do whatever is needed – a law and/or a constitutional amendment – so that it is clear the Legislature can get legal opinions from the attorney general whenever they ask for one, regardless if lawmakers and the governor are on different sides of a legal argument and the governor claims attorney-client privilege with the AG.
That privilege is what stopped Reyes from giving the Legislature an opinion they requested: Whether Herbert had the legal authority to set up the Chaffetz’ replacement election process last spring – and refused to call a special legislative session so lawmakers could do so.
Hughes and Senate President Wayne Niederhauser, R-Sandy, wrote Reyes a letter asking for such an opinion.
According to sources, Reyes’ office (as it often does) “walled off” several assistant AGs from the rest of the staff, and they drew up the lawmakers’ opinion.
But then Herbert – citing attorney-client privilege – threatened Reyes with Utah State Bar action if he gave the opinion to lawmakers.
Reyes, also a Republican, kept the opinion secret.
After The Salt Lake Tribune won a unanimous vote in the State Records Committee under GRAMA to release the opinion to the newspaper, Herbert still wanted the opinion held from the public.
Reyes has until later this month to appeal the Records Committee’s ruling to 3rd District Court, as Herbert asked the AG to do.
But after the committee’s ruling, the three parties started talking.
And Hughes says the agreement is that the opinion will come to lawmakers (and presumably to the Tribune), and it will then become public.
Hughes reiterated to the online political newsletter that he doesn’t much care what the opinion says – but guesses because Herbert didn’t want it out it will “basically uphold our position – that the Legislature gets to decide special election rules.”
The opinion, however, could give some guidance to lawmakers in how they draft their new laws/amendments to ensure that the attorney general is also the top legal advisor to the legislative branch of government and that the Legislature can get opinions from the AG anytime they want.
Legislative leaders this spring and summer didn’t want to go to court or take any other action that would upset the Tuesday vote of the people, said Hughes.
So leaders agreed to wait until the election was certified to act.
Herbert and Lt. Gov. Spencer Cox, the state’s official elections officer, said all along that the U.S. Constitution says a state’s governor will call a special election to fill a U.S. House vacancy.
And, they argued, that meant the Legislature didn’t need to act; they alone could set up a legal special U.S. House election process – which they did.
There were political ramifications to Herbert’s action. He decided to follow SB54 – the current law in general elections that allows a candidate to take either a signature-gathering route to the primary ballot, the traditional delegate/convention route, or both at the same time.
Curtis took both routes. He did go to a special 3rd District delegate convention, but finished fifth there and was eliminated in that route. But he already had the needed voter signatures.
He soundly beat the convention-approved candidate, former state Rep. Chris Herrod, in the Aug. 15 closed GOP primary. And then Curtis easily won Tuesday.
“We (the Legislature) will still put together a process” to replace a U.S. House member, Hughes said Wednesday afternoon.
Oddly enough, in the 2017 session, a Senate bill and a separate House bill both passed their bodies the final days of the general session outlining how a U.S. House vacancy would be filled. But the bills never got a conference hearing and died at adjournment.
“We are close to deciding how we (the Legislature) want to fill such a vacancy, and we will,” said Hughes.