Fight brewing between Utah lawmakers and Gov. Herbert over special House election rules

We may be headed for a showdown between GOP Gov. Gary Herbert and state House Republicans over what to do if U.S. Rep. Jason Chaffetz resigns his seat.

As reported previously, state House Speaker Greg Hughes, R-Draper, believes should an opening in a U.S. House seat from Utah occur, the special replacement election should happen quickly – and only state party delegates from that district should pick the candidates who appear on the ballot.

Paul Edwards, Herbert’s deputy chief of staff for communications, told UtahPolicy Monday that the governor sees no need now to call a special session, nor deal specifically with the Chaffetz situation because there is no vacancy.

Edwards said Herbert believes if there is a vacancy, the democratic process is paramount, and current state election law should be followed. That means there should be a signature petition route and a delegate/convention route, or both, available to all candidates seeking a spot on the special election, called by the governor.

So, if Chaffetz resigns this year, the process would detail a short time frame to gather the 8,000 intra-party voter signatures and set up a delegate convention call to order.

There would then be a 45-day period before the primary election, and a 45-day period before the special election where the replacement is picked.

Hughes, who is considering a run in the 3rd District should Chaffetz resign, counters there’s not enough time for all of that.

You would be at least 90 days out – likely much more — and with tax reform, health care reform, and many important items before Congress the 3rd District shouldn’t be without a representative for up to six months.

Why asks Hughes, is the current delegate-selection process OK for vacancies in other important offices, but not the U.S. House?

Currently, if there is an opening in the attorney general or other statewide office, or in the Legislature, then the delegates meet and send up names to the governor. He feels the same process should be followed in the case of a U.S. House vacancy, with those names going on the final ballot.

Of course, all this is moot if Chaffetz does not resign and stays in office until Dec. 31, 2018 – the end of his term.

But Chaffetz, who shook up the Utah political scene two weeks ago by announcing he won’t run for anything in 2018, has also said he may leave early to return to the private sector and make some money.

Tuesday night, Senate President Wayne Niederhauser, R-Sandy, has called a special caucus meeting of the 24 GOP senators. At that meeting (all Senate GOP caucus meetings are closed), the senators will see if they can decide on a way forward.

Personally, Niederhauser says, if there is a way to take the dual-track SB54 route without greatly delaying a special election vote on a new U.S. House member, he would prefer that.

There’s the real possibility, sources tell UtahPolicy, that there won’t be an agreement between House and Senate Republicans and Herbert.

In which case, there won’t be a special legislative session.

“You don’t want to meet in a special session to debate and just talk,” said Niederhauser. “You want a general agreement, so you can get in, vote, and get out.”

Edwards admits that following current election law (SB54 only part of that), it could take four months or more to replace Chaffetz, should he resign.

But that’s OK. “This is a constitutional office, and it is important not to truncate the process” just to hurry someone into the office, says Edwards.

There is no need for a special legislative session now; no need to place the issue on an already-planned July special session, says Edwards because there is no vacancy.

Herbert, of course, has the sole power to call a special legislative session and he alone sets the agenda.

Now for a bit of background:

— Herbert was clearly embarrassed in his 2016 re-election campaign by finishing second in the state GOP convention to Jonathan Johnson, who came at Herbert from the party’s right wing – the natural grazing ground of state party delegates.

Sitting GOP Utah governors don’t finish second in their own party’s delegate vote – that shows party weakness.

Herbert went on to easily defeat Johnson in the party primary – and a new UtahPolicy poll shows Herbert with the highest favorability rating among all major Utah officeholders.

So the governor is clearly popular among all Utahns, as well.

Several Utah House Republicans have speculated to UtahPolicy that Herbert doesn’t want to take only the delegate/convention route because he is angry with the delegates.

“That is just crazy,” said Edwards of that claim.

This is not about the delegates, really, it is about taking the time to properly fill a vacancy following current election law, Edwards added.

Hughes doesn’t want to get into a public battle with Herbert – at least not yet.

“We are still talking, trying to find solutions,” the speaker told UtahPolicy Monday.

Hughes and Niederhauser both say the Legislature should decide the special election process – that is lawmaking. And the Legislature should (must?) appropriate the $1.5 million a special election will cost.

But without a law detailing the above, the U.S. Constitution just says a state governor will “call” a special election to fill a U.S. House vacancy. No more.

And while there are no further guidelines, Edwards said it would be Herbert’s intention to follow current election law if Chaffetz resigned and the Legislature had not yet acted on the issue – thus the SB54 dual-route would apply.

And here is a final rumor – coming from several Utah House Republicans, but not Hughes:

— If Herbert, who came into the governorship without any special election when former Gov. Jon Huntsman Jr. resigned, refuses to agree to the convention-only route for a U.S. House vacancy, there may be a legislative-passed state constitutional amendment that says if there is a vacancy in the governorship, the lieutenant governor (which Herbert was) won’t automatically advance to the top job, but a U.S. House vacancy route will be imposed – the party delegates and/or signature-gathering primary election will pick the nominee.

Even though he was LG, Herbert would have had a hard time winning such a special gubernatorial special election back in 2009 – with not much name I.D. and no personal wealth to put into a quick election.

Utah governors have no say in proposed state constitutional amendments – they pass each house by a two-thirds vote and then go on the ballot for citizen approval.

Stay tuned. This intra-party battle is far from over.